H-1Bs And Arrests

See below commentary regarding issues related to enforcement efforts. Without going into too much detail about how poorly many of the service centers operate, and how little coordination there is between the various agencies of the DHS after the breakup of the INS, it would seem that enforcement efforts could be focused on those truly have run out of options and appropriate determinations have been made that options have run out? We are seeing strange denials on extension requests for people who have been in valid H1B status for many years. While these cases can often be appealed and rectified, it is frankly beyond comprehension why it is in the interest of the US to not only deprive US employers of employees who are not violating any laws and for which determinations may have been made in error, but also then seek to arrest and deport professionals (H1B petitions require that the job is professional in nature and requiring that the foreign national house at least a US bachelor's degree or its equivalent)? There's no question that laws need to be followed and upheld, but it is very unfortunate when the government flexes its powers often times for more political than actual reasons……. Congress needs to act quickly for comprehensive immigration reform which likely would jumpstart the economy again……… Dan ********************************************************************     For Immediate Release   Legal Action Center Argues H-1B Employees Should Not Face Arrest While Extension Requests Remain Pending   November 8, 2010   Washington D.C. - Late last week, the Legal Action Center of the American Immigration Council (LAC), together with the American Immigration Lawyers Association (AILA), filed an amicus brief arguing that an H-1B employee should not face arrest, detention or deportation after his initial period of admission expires if a pending extension request remains under review. The brief, filed in federal district court in Connecticut, maintains that H-1B employers who follow the law should not lose valuable employees because of widespread delays at immigration processing centers."Both existing law and common sense dictate that the government cannot sit on an employer's H-1B extension request and then arrest the employee due to its own processing delays," said Melissa Crow, director of the Legal Action Center.     The LAC filed the brief on behalf of a Lebanese national represented by the Worker and Immigrant Rights Advocacy Clinic at Yale Law School and the Asian American Legal Defense and Education Fund.  The plaintiff was gainfully employed when his employer requested an H-1B extension in early 2004, more than a month before the deadline.Though his employer paid a $1,000 "premium processing" fee to obtain a decision within fifteen business days, the government neither approved nor denied the application and refused to respond to requests for information.Nearly seven months after the extension request was filed, but before DHS had decided it, immigration agents arrested the plaintiff for allegedly "overstaying" his visa.      While federal law permits H-1B employees to remain in the United States for up to six years, the government grants visas for only three years at a time. Typically, the government may seek to remove noncitizens who overstay a temporary visa. But a federal regulation specifically permits an H-1B employee to continue working for up to 240 days after his initial period of admission expires so long as his employer filed an extension request before that period ended.      In the amicus brief, LAC and AILA argue that the automatic extension of work authorization should prevent the government from arresting H-1B employees while their employers' extension requests remain pending. With supportive declarations from three prominent companies that rely on H-1B workers, the brief further argues that subjecting noncitizens in the plaintiff's position to arrest would threaten to disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program.      ###     For more information contact Wendy Sefsaf at 202-507-7524 or wsefsaf@immcouncil.org

___________________________________________________________________________     The Legal Action Center strives to increase the accountability of government agencies that administer the immigration laws and to ensure these laws are interpreted and implemented in a way that honors fundamental constitutional and human rights. The LAC engages in impact litigation, appears as amicus curiae (friend of the court) before administrative tribunals and federal courts in significant immigration cases on targeted legal issues, and has long worked to protect the right to counsel for noncitizens facing removal from the United States.