Out of Time, Out of a Job, Out of the Country

If the staff at your neighborhood Cafe Express seems a little lighter than usual, a lawsuit in district court might provide the answer why.

In July, Jaime Chavez saw in his mail a letter from Cafe Express, for which he has worked for several years. Chavez, who lives on Maple Avenue, thought: At last. At last he was going to become a permanent U.S. resident, something Cafe Express had promised him it would do for him five years ago. That was shortly after the passage of the Legal Immigration and Family Equity Act of 2000, which allowed undocumented immigrant workers to file for permanent residency status. It was a one-shot deal, and to get the free pass undocumented workers had to file the Alien Labor Certification Application by April 30, 2001. Chavez thought the letter was his ticket to stay in the U.S. forever as one of its own.

Instead, it said this:

"We are writing you with regard to our efforts to assist you in obtaining permanent residency in the United States. Based upon the advice of our present legal counsel, we understand that the labor certification application previously submitted by our company on your behalf in 2001 cannot be successfully completed... In order to file a new labor certification on your behalf, we must be able to show that, on or before April 30, 2001, a green card petition or application was filed on your behalf by a family member of an employer."

The letter came from Cafe Express human resources. It also said that if Chavez could not provide proof of his own independent application for residency by September 15, he would be fired. Since Chavez hadn't filed his own application--he thought Cafe Express had taken care of it for him--that's precisely what happened. He waited five years, gave up enormous chunks of his paycheck to cover legal bills, and got nothing. Actually, he got less than nothing: no residency, no job. How'd that happen? It's after the jump.

In a lawsuit filed Friday in Dallas County district court, Chavez says he and some 75 to 95 other Cafe Express employees had been told in 2001 that the Wendy's International Inc.-owned company had filed the paperwork for them using a Houston-based law firm, Boyar & Miller. Problem is, Chavez alleges, Boyar & Miller missed the April 30, 2001, deadline and never told the applicants that they were never going to become U.S. citizens after all. In fact, the suit alleges, Cafe Express, Wendy's and Boyar & Miller "took steps to keep [Chavez and the other workers] in the dark and led them to believe the applications had been filed." In fact, the suit says, Cafe Express kept docking their paychecks $25 every week in order to cover the law firm's expenses while the processing of the applications took place, from May 2001 through December 2005.

"For five years Cafe Express said, 'We're still processing your paperwork, you will still be U.S. residents, we're still excited," says Stan Broome, the Dallas attorney who brought the suit against Cafe Express, Wendy's and Boyer & Miller, and others. "But Cafe Express also said, 'You have to keep working for Cafe Express, and if you stop working, your application will be thrown out.' The tragedy is, Boyer & Miller did file with the INS. The problem is, they missed the deadline by just a few days, so under immigration law those folks have no remedy. Their applications were denied, and there's nothing they can do about it."

Broome has filed with the lawsuit several letters from Cafe Express's human resources department explaining to them why the money was being taken out of their checks and promising them that their applications were being taken care of. There's even one from May 2004 that says, "We are pleased to announce that SIX (6) active applications are being sent off for final approval to the state for valid U.S. work permits! We have about 95 applications to go!" Broome says none of them were approved, since the law firm had missed the application deadline.

When reached a few minutes ago, Bob Bertini, a Wendy's spokesman, said the company had no formal statement concerning the suit but promised to get back later in the day with some kind of a response. Several people named in the suit and mentioned in the various letters filed as exhibits also couldn't be reached; at least two who were referred to as corporate-appointed legal aides for Wendy's no longer work for Boyar & Miller.

For his client--and others, as he wants this suit approved as a class action--Broome wants the money returned that was taken from the workers' paychecks, and he wants other damages stemming from the fact Chavez and the others will not be able to become permanent U.S. citizens. In fact, he knows that even filing the suit's risky; it could lead to deportation proceedings, at the very least.

"They had been working for five years, and not only did they lose their jobs but any hope of becoming a permanent U.S. resident," Broome says. "Now they have to move out of the country, wait 10 years and begin the process all over again." --Robert Wilonsky

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Robert Wilonsky
Contact: Robert Wilonsky

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