JULY 2011
Khaas Baat : A Publication for Indian Americans in Florida


Connecticut District Court Protects H-1B Employee from Wrongful Arrest

Dilip Patel


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.

USCIS Restores H-1B Cap Exemption to Most Nonprofit Entities Affiliated with Institutions of Higher Education

On March 16, the day before residency match positions were announced within the medical community, USCIS restored, as an interim policy, the H-1B cap exemption status for nonprofit entities that are related to or affiliated with an institution of higher education, provided the institution received a cap exemption after June 6, 2006. While the interim policy affects all institutions and their H-1B employees, it positively and disproportionately affects thousands of foreign national physicians, including medical residents and fellows. USCIS emphasized that cases must be filed with proof that a cap exemption was previously granted by filing copies of petitions and approval notices. It also stressed that these measures will only remain in place on an interim basis while the entire policy is being reviewed.

I-9 Special Alert: Are you compliant? The Obama Administration continues to make worksite enforcement a major priority by conducting a record number of I-9 audits. Most recently, Chipotle Mexican Grill, with more than 900 locations across the United States, has been the focus of ICE I-9 audits. In the Washington, D.C., area, about 400 employees were let go due to problems with their documents. Make sure you are ready when ICE comes knocking!

E-Verify Self-Check Goes Live: The E-Verify Self-Check system, which allows individuals to electronically check their own work authorization status and resolve any inaccuracies before an employer checks the system, was launched on March 21 as part of a test run in five states (Arizona, Idaho, Colorado, Mississippi, Virginia) as well as Washington, D.C. If you live in one of these jurisdictions, you can check your status at https://selfcheck.uscis.gov/SelfCheckUI/.

VIBE: A new beta-test of the Web-based Validation Instrument for Business Enterprise (VIBE), run by Dun & Bradstreet, allows USCIS to access commercially available information about companies that petition for U.S. workers. This means that businesses should be aware that such information will be accessed by investigators and become part of the review process conducted by USCIS. If the U.S. business entity's information on the petition is inconsistent with what is in VIBE, USCIS issues a request for evidence (RFE). Moreover, there have been reports that the VIBE system, which is based on publicly available information, too often contains inaccuracies, is unreliable, and requires a significant effort to update.

Dilip Patel of Dilip Patel Law Firm (Business and Immigration Attorneys) is board certified in immigration and nationality law. He can be reached at (813) 855-0066, e-mail dpatel@dplawfirm.com or visit www.dplawfirm.com

homeeventsbiz directorysubscribecontentclasses/places of worshipnewseditorialhealthimmigrationfinance
techno cornermoviesfashionmusic/dancebooksyogahome improvementastrologycuisinemotoringgetawayclassifiedsARCHIVES
Read the Editor's Blog. By Nitish Rele Classifieds Getaway Motoring Cuisine Astrology Home Improvement Books Yoga Music and Dance Fashion Movies Techno Corner Finance Immigration Health Editorial News Classes/Places of Worship Content Find us on Facebook!