Major reprieve for those seeking H-1B visa extension

H-1B employees, whose timely-filed applications for extension of visas are pending before US immigration authorities, may not be arrested for "overstaying" now following a recent federal court ruling on the issue.

A judge in Connecticut recognised that a federal regulation allows H-1B employees - including Indians - to continue working for 240 days pending the adjudication of their extension applications and that "work authorisation is part and parcel of their authorisation to be in the country, not a separate matter."

The ruling came following an argument in an amicus brief by American Immigration Council (AIC) and American Immigration Lawyers Association (AILA).

"Permitting the initiation of removal proceedings during this period would thus be unfair to employees and employers alike, according to the (court) decision," the American Immigration Council said in a statement.

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The ruling is a victory for the rule of law and for common sense, said Melissa Crow, director of the American Immigration Council's Legal Action Centre.

"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," Crow said.

In the case before the Connecticut judge, 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, government never adjudicated it and refused to respond to requests for information.

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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 their amicus brief, AIC and AILA argued that current laws provides for work authorisation, while a timely-filed extension application is pending, necessarily authorises H-1B employees to remain in the US.

Accordingly, they cannot be arrested solely for staying in the US while extension applications are being adjudicated.

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With supporting declarations from three companies that rely on H-1B workers, the brief argued that arresting non-citizens with pending extension applications would threaten to disrupt key sectors of the US economy and undermine the goals of the H-1B programme.

In the decision, the judge said the AIC-AILA brief "highlights the substantial interest that employers have in the administration of the H-1B visa programme, the lack of notice provided by the regulation at issue, and the hardship that the government's proposed interpretation would impose upon them."