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Sixth Circuit Upholds Dismissal of Fraud and Contract Claims Against Employer Sponsoring Green Card Application for Employee

In an interesting case situated at the intersection of immigration and contract law, the Sixth Circuit recently affirmed a district court’s dismissal of claims against Dow Corning Corporation stemming from its sponsoring an application for legal permanent residence for a Belgian employee.

In Gason v. Dow Corning Corp., — F. App’x — (6th Cir. Jan. 6, 2017), the employee, Lucia Gason, accepted a permanent assignment in 2012 with Dow Corning’s Michigan office.  According to Gason, as part of the offer package, Dow Corning promised to obtain legal permanent resident status, or a “green card,” for her.  The Sixth Circuit noted that the green card application process is lengthy and requires submission of certain materials from both the employee and employer.  Additionally, the application can be audited by the Department of Labor, further extending the time required to process the document.  Dow Corning sent several requests to Gason to produce the needed documents, but Gason delayed in returning them.  But before the process had come to a close, Dow Corning demoted Gason, who was an at-will employee, and offered her a position in Belgium—thus ending the green-card application process.

Gason brought several claims against Dow Corning, including that the company had made fraudulent misrepresentations to her about obtaining a green card, that Dow Corning was liable to her under a theory of promissory estoppel, and that its failure to actually obtain a green card for her constituted a breach of contract.  Dow Corning moved for summary judgment, arguing that it had never actually promised to obtain a green card for her.

The Sixth Circuit agreed, noting that, practically speaking, a promise to obtain a green card would have been impossible for Dow Corning to have carried out, because it does not itself issue green cards.  The most it could have promised was to sponsor Gason in the green-card application process—which it did.  Dow Corning retained counsel to assist the company in doing so, and it sought Gason’s assistance with completing the required paperwork—paperwork that Gason was dilatory in completing.  The Sixth Circuit therefore affirmed the dismissal of all claims against Dow Corning.

With increased scrutiny on the immigration system leveled by the new administration, employers should be aware of the changes that will continue to affect employers and their foreign employees.  It is not clear how the areas of contract and immigration law will continue to intersect, but Gason makes clear that employees cannot successfully sue their employees for breach of an alleged contract to obtain a green card, as it is not an employer who is empowered to actually issue green cards.

 

by Diana M. Comes

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