A US court has ruled that workers in the US on H-1B visas, which are coveted by Indian IT professionals, may not be arrested for "overstaying" when their visa extension applications are pending before US immigration authorities.
In a recent ruling, a federal judge in Connecticut recognised that regulations allow H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that "work authorisation is part and parcel of their authorisation to be in the country, not a separate matter".
The ruling came following an argument in an amicus brief by American Immigration Council (AIC) and American Immigration Lawyers Association (AILA).
"Permitting the initiation of removal proceedings during this period would thus be unfair to employees and employers alike, according to the (court) decision," AIC said in a statement.
The ruling is a victory for the rule of law and for common sense, said Melissa Crow, director of AIC's Legal Action Centre.
"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," Crow said.
In the case before the Connecticut judge, 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 current laws provide for work authorisation, while a timely-filed extension application pending necessarily authorises H-1B employees to remain in the US.
Accordingly, they cannot be arrested solely for staying in the US while extension applications are being adjudicated.