Norambuena v. W. Iowa Tech Cmty. Coll.

• Decision Date: 31 March 2022
• Docket Number: C20-4054-LTS
• Parties: KARLA O'NELL NORAMBUENA, et al., Plaintiffs, v. WESTERN IOWA TECH COMMUNITY COLLEGE, et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

KARLA O'NELL NORAMBUENA, et al., Plaintiffs,
v.
WESTERN IOWA TECH COMMUNITY COLLEGE, et al., Defendants.

No. C20-4054-LTS

United States District Court, N.D. Iowa, Western Division

March 31, 2022

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This case is before me on motions (Docs. 102, 106, 107, 112) to dismiss the third amended complaint (TAC) filed by (1) defendants Premier Services, Inc. d/b/a J&L Enterprises and d/b/a J&L Staffing and Recruiting (J&L) and Nancy Albrecht (together, the J&L defendants); (2) Juline Albert, Rosana Salgado Burright, Lilly Castro, Terry Murell, Terry Yi, James Zuercher and Western Iowa Tech Community College (WITCC) (together, the WITCC defendants); (3) Royal Canin USA, Inc. (Royal Canin); and (4) Tur-Pak Foods, Inc. (Tur-Pak). Plaintiffs have filed resistances (Docs. 127, 128, 129 and 130) and defendants have filed replies. See Docs. 139, 141, 142, and 143. Oral argument is not necessary. See Local Rule 7(c).

II. FACTUAL ALLEGATIONS

The following allegations from the TAC (Doc. 93) are accepted as true for purposes of the motions to dismiss:

The J-1 visa program grants temporary visas to “those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving

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training, or to receive graduate medical education or training.” Students may receive these visas to complete an internship, which the program defines as “[a] structured and guided work-based learning program for an Intern . . . that reinforces an intern's academic study; recognizes the need for work-based experience; provides on the-job exposure to American techniques, methodologies, and technologies; and enhances the Intern's knowledge of American culture and society.”

To qualify as a “student intern, ” the student must be “primarily in the United States to engage in a student internship program rather than to engage in employment or provide services to an employer.” The internship program must “expand[] upon the participants' existing knowledge and skills.” Interns cannot be used to “displace full- or part-time or temporary or permanent American workers or serve to fill a labor need, ” and the “position that the student intern[] fills [must] exist[] solely to assist the student intern in achieving the objectives of his or her participation in a student internship program.” Sponsors of a J-1 intern must:

(i) Not place a student intern in an unskilled or casual labor position

(ii) Not place a student intern in a position, occupation, or business that could bring the Exchange Visitor Program or the Department into notoriety or disrepute

(iii) Not engage or otherwise cooperate or contract with a staffing/employment agency to recruit, screen, orient, place valuate, or train student interns, or in any other way involve such agencies in an Exchange Visitor Program student internship program;

(iv) Ensure that the duties of a student intern as outlined in the T/IPP will not involve more than 20 per cent clerical work, and that all tasks assigned to a student intern are necessary for the completion of the student internship program.

Further, the program requires sponsors to “distinguish between work-based learning for student interns, which is permitted, and ordinary employment or unskilled labor, which is not.”

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Beginning in 2018 or early 2019, the WITCC defendants began to seek authorization from the United States Department of State to host students as part of the J-1 visa program. On February 14, 2019, the State Department notified WITCC it had been approved as a sponsor and would be allocated 50 J-1 visas for the academic year beginning on July 31, 2019. Around this time, the WITCC defendants began working with J&L, a local staffing agency, to find a way to fund the program. Ultimately, the agreed-upon plan was that WITCC would bring the students to the United States and J&L would find local jobs for the students. WITCC, J&L, and local companies Tur-Pak and Royal Canin entered into an agreement where:

• J&L would ensure that the J-1 visa students met the minimum qualifications for the jobs, including limited English proficiency and physical fitness.

• J&L would provide transportation from WITCC's apartment complex to work and back for the J-1 visa students.

• WITCC would house the J-1 visa students on campus and secure visas for entry into the United States. This included offering an educational component to recruit the students.

• Royal Canin and Tur-Pak would pay $15/hour for the J-1 visa students' labor, through J&L. However, unbeknownst to the J-1 visa students, a majority of those wages ($7.75/hour) would go to WITCC to pay for the student's housing, tuition, and fees. The students would then make minimum wage, $7.25/hour.

• J&L would benefit, at least, by collecting a fee for providing these services.

• J&L would also benefit by charging the J-1 visa students for services such as transportation, and for employment badges.

Meanwhile, WITCC began to recruit students to take part in the program. On March 14, 2019, the Chilean Defendants^[1] advertised the WITCC J-1 visa program on Facebook, including WITCC's logo, which is how many of the plaintiffs learned of the

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program. In April 2019, the WITCC and J&L defendants traveled to Chile to meet with their recruits, including plaintiffs. These defendants gave presentations describing the program and told plaintiffs they would receive a two-year degree in either culinary arts or robotics. Further, they promised plaintiffs free room, board, tuition and meals. These were reiterated in an letter provided to plaintiffs, which promised:

• a scholarship to provide a two-year associate's degree in robotics or culinary arts,

• a scholarship to pay for housing on campus,

• up to $1, 000 for travel to the United States, . the opportunity to participate in fun cultural activities.

This letter also stated students would be required to work as many as 35 hours per week and attend classes 12 hours per week.

During this trip, WITCC and J&L also interviewed plaintiffs. While the details of the interview are unclear, many plaintiffs were required to show they could lift and carry various amounts of weight. Additionally, WITCC and J&L attempted to prepare plaintiffs for their interviews at the United States embassy, a requirement to receive the visa. They told plaintiffs not to mention their work and to say the program only lasted a year, even though the defendants were assuring plaintiffs it was a two-year program.

On April 24, 2019, the WITCC defendants sent acceptance letters to each plaintiff, which stated:

We are pleased to notify you of your acceptance into Western Iowa Tech Community College as a J-1 visa student, in the Robotics & Automation program. You should start your Visa application process as soon as you can.

In this package you will find, other than this acceptance letter, your DS2019 form, the pre-arrival handbook, your job offer letter, and your proof of health insurance according to the J1 Visa requirements.

Although you were already tested in English reading and writing, it is part of our procedure for new international students to have them tested again upon arrival in their English language skills. You may need to take intensive English classes in order to prepare you to attend your program classes and job site training.

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The letter also included an offer to work with the J&L defendants but did not indicate the rate of pay or hours. The letter described the work as “valuable, resume-enhancing experience for candidates to gain work experience.”

The acceptance packet included an agreement for the students to sign, which stated they would:

(1) Attend English courses if my English skills are determined to be lower than necessary to perform my academic and internship duties.

(2) Attend classes in my program (Culinary or Robotics/Mechanical Engineering) and maintain a minimum of a 2.0.

(3) Attend my internship and receive positive reviews from my internship supervisor.

(4) Live in the Western Iowa Tech student housing, Sun Ridge apartments.

(5) Return to my home country after graduation or upon request of the College. I understand that if I am not attending classes or my internship, or if I am dismissed from either the college or my internship, that I must return to my home country immediately at my own expense.

The agreement did not mention the cost of tuition, meals, or transportation, nor did the agreement discuss an arrangement to pay WITCC through the students' work at Royal Canin or Tur-Pak.

In June 2019, the WITCC defendants advised plaintiffs that WITCC had made some mistakes:

1. Using J&L company as a partner. J&L is a job agency and, according to the rules, that we, unfortunately, did not know, cannot participate in any J1 program. The reason is that this program has the main purpose of providing a cultural interchange between the U.S. and other countries, even though allowing participants to be trained in the real environment and be paid for that, which is what will happen when you come. J&L will be assisting the college in the process of allocating you among the various business/partners where you will be trained and paid for that[.]

2. At any moment, we are [not] allowed to mention that the reason for J1 paid internship is the lack of workers in the area, even when indeed there is a need for workers. Also, we cannot call you workers, but student interns, and we cannot use the word salary or wages, but stipends or compensation.

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3. According to SEVIS instructions, we cannot issue a DS2019 form for longer

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