Us Court Ruling: H-1B Visa workers May Remain in US While Awaiting Extension Pleas

by admin on April 18, 2011

Immigration reform has long been a  buzzword in the USA, but the debate has gathered momentum in the last few years and various issues faced by immigrants dealing with the United States’ befuddling immigration system continue to surface in the media.

We recently wrote about the new restrictions in place for H-1B workers in the USA, which has led to a decrease in demand for this visa option. However, a victory for the rights of H-1B workers in the USA was seen in a recent court ruling in Connecticut. As a US Immigration lawyer, Thailand sees numerous visa applications each year for a variety of US visas. The H-1B category is an option for highly qualified candidates, and we receive requests for information on this category and how to apply for it.

A federal judge ruled that H-1B workers in the USA can not be arrested for “overstaying” their visa while they have visa extension applications still being processed by US Immigration officials. Indian IT professionals, in particular, widely use this visa option for their employees.

This ruling noted that regulations are in place which grant H-1B visa employees the right to remain the USA and continue their work for up to 240 days while their extension applications are pending. The judge also ruled that “work authorization is part and parcel of their authorization to be in the country, not a separate matter”.

This particular case involved a Lebanese national employed as a medical researcher, when his employer requested an H-1B visa extension in early 2004. Although his employer paid a hefty fee of $1,000 for premium processing of his extension, the US government never adjudicated it and did not provide a response to requests for information on the progress of the extension. The plaintiff was then arrested about seven months after the application for extension, for “overstaying” the period of time specified in his visa. He was then detained for approximately two months while involved in removal proceedings.

His case was advocated for on behalf of the American Immigration Council (AIC) and American Immigration Lawyers Association (AILA). The amicus brief filed by the AIC and AILA stated that current laws covering work authorization allow for timely-filed extension applications, and thus grants the authority to an H-1B employee awaiting a pending extension to remain the USA while his or her application is pending. This means they can not be arrested for remaining in the USA during the time frame they are awaiting the results of a pending extension application.

{ 0 comments… add one now }

Leave a Comment

Previous post:

Next post: