Murthy Success Story: Section 498A “Dowry Law” Problem in H1B Case16 Apr 2010
The Murthy Law Firm recently overcame a rather novel issue involving India’s Dowry / Spousal Abuse Law, known as Section 498A. The USCIS issued a notice of intent to deny (NOID) an H1B extension-of-status request because the individual had an outstanding arrest warrant in India under Section 498A. The USCIS noted that extensions of status are discretionary, and that they could not overlook the pending charges when exercising this discretion. We were able to overcome the NOID by showing that our client was addressing the false Section 498A charges. Special thanks are extended to our client, with whose permission this case can serve as an example to MurthyDotCom and MurthyBulletin readers. Information on our clients and their cases is never divulged without consent.
Concerns of the USCIS: Serious Charges
The USCIS’s concerns centered on the severity of the accusations that had led to the warrant. They also pointed to the length of time that had elapsed since the warrant was issued, without resolution. Thus, they issued a NOID regarding the request to extend H1B status within the United States.
Background: Indian Spousal Abuse Protections
The Section 498A provisions of Indian law, as some of our readers are aware, are intended to address complaints of spousal abuse or dowry demands. However, the law is broad, and the criminal complaints and charges can extend beyond the allegedly abusive spouse to extended family members. The law, while intended to protect women, in many instances has become a tool of revenge and extortion by disgruntled spouses. These abuses of the law have been recognized by Indian Courts, and travel warnings have been issued by the U.S. Department of State (DOS) and the Canadian government. Human rights organizations have brought attention to the false arrests and prosecutions.
Our client was the victim of a false complaint. He was distantly related to the complaining spouse by marriage. His name had been included in a list of relatives in the Section 498A complaint. He had only met the woman who filed the complaint once, as a guest at her wedding.
Arguments: Client Not Ignoring or Avoiding Charges
The Murthy Law Firm addressed the USCIS’s points in our response. The USCIS was concerned that the warrant had been issued almost a year earlier, without resolution. Thus, the USCIS seemed to believe that our client may have been ignoring the charges. They, understandably, did not want to grant the extension of status to facilitate his remaining in the U.S. to avoid facing the charges in India. To counter this impression, we provided very detailed proof of his prompt and proactive efforts to address the matter.
We showed that our client had hired an attorney in India immediately upon learning of the warrant. We established that the attorney had promptly filed a motion to quash the warrant. We documented that the Indian Court had held a hearing on our client’s motion and, as a result of that hearing, had issued a stay of the proceedings against our client. Thus, the warrant could not be executed because of the stay. We also provided proof that there was an upcoming hearing in the matter, and that it was only required that the attorney be present for the hearing. We showed that our client was doing everything possible and legally required from within the United States.
Argument: The Client is Victim
In addition to showing that our client was addressing the charges in India, we provided proof that this individual was a victim of a wrongful complaint. The complaint contained allegations of various in-person threats and physical involvement with the husband’s alleged abuse. The abuse was alleged to have occurred in the United States. We established that, at the time of the alleged events, our client was either outside the U.S. or hundreds of miles away from the location at issue. We pointed out numerous inconsistencies between the complaint and the known facts in the case, verified by other legal documents.
Argument: Abuse of These Laws is Common
Finally, we provided extensive documentation of the widely recognized abuse of the Section 498A provisions. We utilized the wealth of materials, including Indian Court opinions, forcefully describing how the Dowry Law, has unintended consequences, as a woman may seek revenge against a spouse or former spouse and his extended family. One such case used in support of our client’s claims stated:
“There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative – including minors and even school going kids, nearer or distant relatives, and in some cases against each and every person of the family of the husband whether living away or in other town or abroad, and married, unmarried sisters, sister-in-laws, unmarried brothers, married uncles, and in some cases grandparents or as many as 10 to 15 or even more relatives of the husband.”
Our NOID response was successful. The USCIS granted our client’s H1B petition and request to extend status. Thus, fortunately, with proper documentation it is possible to overcome this type of problem in the immigration context. It is important to note that we believe the arguments were persuasive in large part because our client was addressing the problem in India. It was clear that the individual was not seeking to avoid the charges by hiding in the United States. The documentation showing that he was a victim and that these charges are often false also helped. It is unlikely, however, that these things alone would have proven successful. Readers who may be facing the unfortunate situation of such wrongful accusations should locate appropriate representation in India, and work to resolve the problems. Charges such as these also create complications in connection with other aspects of the immigration process. Thus, they must be faced, with proper legal counsel, within India. The Murthy Law Firm is familiar with many particulars specific to India. We can assist with the related immigration matters that are connected to these cultural situations.
Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved