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Connecticut Court Protects H-1B Employee from Wrongful Arrest: States that Regulation Extending Work Authorization based on Timely Filed Extension Implicitly Extends Authorization to Remain in U.S. - April 19, 2011

A federal district court in Connecticut ruled that the government may not arrest an H-1B employee for whom a timely filed extension application remains pending. U.S. District Judge Janet C. Hall in El Badrawi v. United States found that a federal immigration regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that that authorization is part of their authorization to be in the country, not a separate matter. "The government's proposed interpretation of the work authorization regulation . . . that it extends authorization to work in the country, but not authorization to be in the country," held Judge Hall, "cannot be squared with the text or purpose of that provision. . . ." Judge Hall also found that the government's proposed interpretation of the regulation at issue raises grave due process concerns. "The government has argued that. . .an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment's Due Process Clause." Had the government provided clear, advance notice of the risk of detention, the court may have ruled otherwise.

The plaintiff, a medical researcher from Lebanon, was in valid H-1B status when his employer timely filed an H-1B extension. USCIS never adjudicated the petition and refused to respond to requests for information. Nearly seven months later, with the case still pending, Immigration and Customs Enforcement (ICE) agents arrested the plaintiff for allegedly "overstaying" his initial period of admission. He was placed in removal proceedings and detained for nearly two months. He sued the government for false arrest and abuse of process.

The court concluded that permitting the initiation of removal proceedings during this period would thus be unfair.