Another Federal Court decision goes against the USCIS

By |2011-04-14T21:55:48+00:00April 14th, 2011|Categories: Government Agency Actions - USCIS, ICE, etc., US Immigration Policy, Visas - H-1b, L-1, E, O, TN|Tags: , , , |

Another Federal Court, in a decision released this week, has in essence,  told the USCIS to follow the law. In the instant case, the foreign national had timely filed an H-1 extension and while the extension was pending, was nonetheless,  arrested, detained, and placed in removal proceedings.  Although, the USCIS may have had a legitimate basis for attempting to detain the foreign national, it was the blatant disregard of Federal regulations  that concerned the Federal Court.  It is contended by this author that the USCIS could've made the arrest on legitimate grounds if the prevalent attitude at the USCIS was not so inclined to ignore the law whenever it chooses. The Court in its decsision made the following statement: Based on the text of the regulation, aliens making a good faith effort to comply with immigration law could not reasonably be expected to anticipate the position advanced by the government, i.e., that despite being admitted under a work-based visa, and despite an express government authorization to continue that work while a timely filed extension application is pending, they remain subject to arrest, detention, and removal at any time. Given its plain meaning, the regulation gives rise to a reasonable expectation that affected aliens “are authorized to continue employment with the same employer” subject to the same conditions and limitations that applied during their previously authorized period of stay. It is hoped, that as more foreign nationals and more U.S. corporations assert their rights and demand that the USCIS follow the law, that USCIS policy makers and politicans who control the USCIS much as Edward Bergen controlled Charlie McCarthy , will stop trying to subvert existing statutes, regulations, and years of Court decisions.  A return to an Agency that follows the regulations would be a welcomed development.