“Work Authorization is Part and Parcel of One’s Authorization To Be in This Country”

April 18, 2011 Comments Off on “Work Authorization is Part and Parcel of One’s Authorization To Be in This Country”

A recent ruling by U.S. District Judge Janet C. Hall in Connecticut is an important victory for the H-1B workers and their employers. The issue in this case was whether the government may arrest and detain H-1B workers whose work authorization has expired but for whom an extension application was timely filed and remains pending with the United States Citizenship and Immigration Services (USCIS). The regulation in accordance to 8 C.F.R. § 274a.12(b)(20) provides that for a period of 240 days following the expiration of an H-1B worker’s status, as long as an extension application has been timely filed and remains pending, the H-1B workers may continue to work for their employers. Only when the application becomes ultimately denied would the H-1B worker begin to accrue unlawful presence in the United States.

In El Badrawi v. United States, 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.

The government argued that while the extension application is pending and the H-1B worker’s status has expired, the government has authorization to arrest and detain the H-1B worker. The American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA) argued in an amicus brief that 8 C.F.R. § 274a.12(b)(20), which provides for work authorization while a timely-filed extension application is pending, necessarily authorizes H-1B employees to remain in the United States. Accordingly, they cannot be arrested solely for staying in the country while extension applications are being adjudicated. 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 and undermine the goals of the H-1B program.

Judge Hall agreed and ruled in favor of the plaintiff, who was represented by the Worker and Immigrant Rights Advocacy Clinic at Yale Law School and the Asian American Legal Defense and Education Fund.

This was a significant victory for the parties involved and is a good reminder that the government must interpret and enforce its regulations in keeping with their intended purposes, which should not involve arresting, detaining and removing workers without notice.

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