US DISTRICT COURT RULES IN FAVOR OF H-1B EMPLOYEE IN EL BADRAWI

A federal district court judge in Connecticut ruled in favor of an H-1B employee who was arrested by ICE after his I-94 expired but during a period where a timely extension for him was filed with USCIS. The case is El Badrawi v. United States, No. 07-01074 (D. Conn. 2011).
The judge held that ICE lacked probable cause to arrest an H-1B employee who remained in the United States pending the adjudication of a timely filed extension application on his behalf. The judge used the arguments filed in an amicus brief by the Immigration Council and AILA, and recognized that 8 C.F.R. § 274a.12(b)(20) allows an H-1B employee to continue working for up to 240 days after the expiration of an authorized period of stay while a timely filed extension application remains pending.
Because this regulation addresses work authorization granted incident to status, the court reasoned that work authorization is part and parcel of the authorization to be in the country, not a separate matter. The district court also found that the government’s contrary interpretation would present grave due process concerns, since El Badrawi lacked notice that government agents could arrest, detain, and remove him during the period in which he enjoyed continued employment authorization legally.
With supporting declarations from three companies that rely on H-1B workers, the amicus brief argued that arresting non-citizens with pending extension applications could disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program.
Since the government could also not show hardship to it and the basic unfairness that on arm of DHS (USCIS) does not adjudicate the extension fast enough while another arm of DHS (ICE) seeks to remove a person at the same time the balance of equities strongly favored the employee, as the court’s just decision shows.

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