H-1B Employees Can Stay While Visa Extensions Pending: U.S. Court

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.