Employment, Higher Education, and Immigration Law Intersect in Missouri Supreme Court Decision

Jan 17, 2019

Five areas in which Tueth Keeney attorneys have particular expertise””employment, higher education, and immigration, as well as trial and appellate litigation””intersected in an unusual set of facts addressed by the Missouri Supreme Court on January 15, 2019. The case was Kader v. Board of Regents of Harris-Stowe University.

Professor Kader, an Egyptian national, was teaching at Harris-Stowe University using a J-1 visa””which the court describes as “a non-immigrant visa for individuals approved to participate in work- and study-based exchange visitor programs.” Her J-1 visa was set to expire in 2010, which meant that in order to remain in the United States she either had to obtain a waiver of the 2-year home residency requirement to which some J-1 visa holders are subject or return to Egypt and apply for a new visa. When she did not obtain a waiver, Kader sought an O-1 visa, which is reserved for one who has “extraordinary ability,” i.e., “that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” Her O-1 application was denied, and, according to the Court, the University did not appeal. Because Kader was left with no visa status permitting her to continue to remain and work in the United States, the University was required to discharge her.

Kader prevailed at trial and was awarded substantial damages: $750,000 in actual damages and $1.75 million in punitive damages.

The Supreme Court reversed, sending the case back for a new trial. The basis for the Court’s remand was one line in the verdict director. Kader claimed that the University discriminated against her based on national origin when it “did not appeal the denial of the O-1 Visa Petition.” But, the Court held, there was not sufficient evidence to support that claim, in two respects. First, there was no evidence that the University had any obligation to Kader to appeal the denial. Second, there was no evidence that an appeal could have been successful.

Among the lessons that can be learned from this case are:

For trial lawyers”¦

  • Don”™t overreach in drafting a verdict director. The evidence regarding Kader’s qualification for an O-1 visa and the University’s alleged responsibility to appeal its denial was ambiguous and minimal””at best. If the O-1 appeal had been left out of the verdict director, the same verdict might have been affirmed.

For visa-holding employees and their employers”¦

  • Be sure that the employer’s obligations with regard to an employee’s visa are clear. Kader and the University disagreed over the extent of the University’s obligation to support her effort to obtain a visa. It appears that Kader had nothing specific to point to when she claimed the University had to do more.

And for trial and appellate lawyers”¦

  • When dealing with a complex area of the law, get help from a subject-matter expert””and then, at both levels, be clear regarding the legal mechanisms involved and what evidence pertains to each step. The Supreme Court says Kader applied for an O-1 visa, but that the University would have appealed the denial. The switch in alleged responsibility from Kader to the University is odd, unexplained, and likely wrong. The briefs in the Supreme Court were ambiguous (or conflicting) about the respective roles of Kader and the University with respect to the O-1 visa””and the trail record may have been inadequate or inconsistent. To most effectively articulate to the trial and appellate courts the immigration process and to explain what Kader or the University did or did not do may require adding to the team an attorney with immigration expertise””something that no lawyer who appeared in Kader’s case, on either side, claims to have.

James Layton leads the firm’s Appellate practice group and is a member of the firm’s Commercial Litigation, Labor, and Education groups. He assists clients with analysis and presentation of complex legal issues in Missouri and federal courts, both trial and appellate. In addition to handling cases himself and with other attorneys at Tueth Keeney, Jim consults with clients on appellate strategy and assists other counsel in high-stakes, complex appeals.

Jim has briefed and argued cases before the U.S. Supreme Court and before all Missouri appellate courts””including more than 90 cases before the Missouri Supreme Court. He has represented clients in U.S. district courts and in Missouri circuit courts from Jackson County to the City of St. Louis. He has extensive experience with government-related litigation and state taxation disputes. Jim is a fellow of the American Academy of Appellate Lawyers, a past president of the Bar Association of the U.S. Court of Appeals for the Eighth Circuit, and a past chair of the American Bar Association’s Council of Appellate Lawyers. He is a frequent speaker in the areas of appellate practice and constitutional law, both state and federal.

Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.

Higher Education – Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.

Immigration – The Firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.

Appellate Practice –  Tueth Keeney lawyers have briefed and argued hundreds of appeals, including appeals in all Missouri and Illinois state and federal appellate courts and in the U.S. Supreme Court. The Appellate Practice Group represents clients on a wide range of issues impacting businesses, individuals, government entities, and educational institutions. Tueth Keeney attorneys are also available to contribute their considerable experience (including more than 90 arguments before the Missouri Supreme Court) to appeals handled by others””strategizing, assisting with briefs, and preparing for oral argument.