A recent ruling from a federal judge in Connecticut confirmed that—as the American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA) argued in an amicus brief—the government may not arrest H-1B employees for whom timely-filed extension applications remain pending.
The H-1B Visa allows U.S. employers to temporarily employ foreign workers in specialty occupations.
The decision in El Badrawi v. 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.
Permitting the initiation of removal proceedings during this period would be unfair to employees and employers alike, according to the decision.
The plaintiff, a Lebanese national, 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 refused to respond to requests for information. 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.
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.”