Federal Court Decision Confirms H-1B Employees Have A Right To Remain In The US While H-1B Extension Application Is Pending

In a recent decision before the US Federal District court in Connecticut, the judge confirmed that the government may not arrest H-1B employees whose employers have timely-filed extension applications while adjudication remains pending. The decision in El Badrawi v. United States recognizes that a federal regulation allows an H-1B employee to continue to work for 240 days beyond the validity date of their H-1B status pending adjudication of their extension application. The court determined that “work authorization is part and parcel of their authorization to be in the country, not a separate matter”. According to the decision, allowing the Government to initiate removal proceedings during this period would be unfair to employees and employers alike.

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 their amicus brief, AIC and AILA argued 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.

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.”

Judge Hall’s 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 Center. “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.”

Courtesy of American Immigration Lawyers Association (AILA) and American Immigration Council (AIC).

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  1. Tom says:

    Interestingly CA state DMVs will not accept the request to renew drivers licence even if you have a case pending with USCIS. They need approved H1B for that. What are we supposed to do for this? We should sue CA state also like this. And still CA politicians advocate for the rights of illegal immigrants. ( Looks like they dont want anyone to come to the country legally)

  2. Narnia says:

    Looks like it’s the same case with DMV’s in CO, VA not sure about others but it may be the same. Can anything be done about this?

  3. Gopi says:

    Same case with DMV offices from Alabama too. I went with my pending notice. They said they cant renew. But luckily the alabama has a rule that you will have 60 days to renew the expiry license. So, if pending decision came with 60days it will be okay. If it passed 60days, then dont know what to do?

  4. Nik says:

    TX DMV renewed mine for a year after I provided the USCIS receipt of my application…so it must be a state by state thing.

  5. MZJS says:

    In TN you have to send the pending details to Nashville and the DMV main office will work with USCIS to find out about your case then you will get a letter from them which you can take to the local DMV to renew the license. The processes takes around 6 weeks to it needs to be at least that much in advance.

  6. Raj says:

    OH also renews for 1 year with a receipt

  7. H1b says:

    VA also renews for a year with receipt

  8. WI DMV says:

    WI states does not renew drivers licence even if you have a case pending with USCIS. They need approved H1B for that

  9. FL DMV says:

    We know a friend in Florida who are on a motion to extend their H1B got their driving license renewed.

  10. sendmorejunk says:

    NC renews for 240 days (got mine done!)