A Connecticut judge ruled H-1B visa holders who are having extensions processed would not be arrested or detained.
A recent ruling from a
federal judge in Connecticut confirmed that the government may not arrest H-1B employees
for whom extension applications filed in a timely manner remain pending. The
decision in El Badrawi vs. United States, by U.S. District Judge Janet C. Hall
recognized that a federal regulation allows H-1B employees to continue working
for 240 days pending the adjudication of their extension applications, and that
"work authorization is part and parcel of their authorization to be in the
country, not a separate matter."
Permitting the initiation of
removal proceedings during this period would thus be unfair to employees and
employers alike, according to the decision. The AIC (American Immigration
Council) and the AILA (American Immigration Lawyers Association) argued the
point in their amicus brief. Rashad Ahmad Refaat El Badrawi, the plaintiff, was
a Lebanese national who had lived in the United States in compliance with
immigration law for over 10 years and was gainfully employed as a medical researcher
when his employer requested an H-1B extension in early 2004, more than a month
before his H-1B status expired.
Though his employer paid a
$1,000 fee for premium processing of the application, the government never
adjudicated it and never responded to requests for information on the status of
the processing. Nearly seven months after the request was filed, immigration
agents arrested the plaintiff for allegedly "overstaying" his initial period of
admission. He was placed in removal proceedings and detained for nearly two
months.
The AIC and AILA argued that
8 C.F.R. ??? 274a.12(b)(20), which provides for work authorization while an
extension application filed in a timely manner is pending, necessarily
authorizes H-1B employees to remain in the United States: "A nonimmigrant alien
[with an H-1B visa] whose status has expired but who has filed a timely
application for extension of such stay . . . [is] authorized to continue
employment with the same employer for a period not to exceed 240 days beginning
on the date of the expiration of the authorized period of stay," the regulation
stipulates.
Accordingly, visa holders
cannot be arrested solely for staying in the country while extension
applications are being processed. With supporting declarations from three
companies that rely on H-1B workers, the brief argued that arresting
noncitizens with pending extension applications would threaten to disrupt key
sectors of the U.S. economy-H-1B visas are highly sought after by Indian IT
workers, for example-and undermine the goals of the H-1B program.
In her decision, Judge Hall
said the AIC-AILA brief "highlights the substantial interest that employers
have in the administration of the H-1B visa program, the lack of notice provided
by the regulation at issue and the hardship that the government's proposed
interpretation would impose upon them."
Melissa Crow, director of
the American Immigration Council's Legal Action Center, said Judge Hall's
ruling is a victory for the rule of law and for common sense. "If H-1B employees
can continue working while extension applications on their behalf are pending,
it defies logic to argue that they can be arrested, detained and removed
without notice," she said.
Nathan Eddy is Associate Editor, Midmarket, at eWEEK.com. Before joining eWEEK.com, Nate was a writer with ChannelWeb and he served as an editor at FierceMarkets. He is a graduate of the Medill School of Journalism at Northwestern University.
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