U.S. Citizenship and Immigration Services has released new guidance that could help H-1B visa holders and others waiting for employment-based green cards. The policy update follows earlier USCIS efforts to inform foreign-born scientists and engineers of options if laid off during a corporate downsizing. The new guidance is additional evidence USCIS has adopted a more welcoming posture toward high-skilled professionals than during the Trump administration.
New USCIS Guidance
On June 14, 2023, USCIS issued a policy alert that the agency has added guidance to the USCIS Policy Manual on “the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances” based on existing regulations. USCIS added the guidance to Chapter 3, part B, volume 10 of the manual used by adjudicators.
“USCIS may provide employment authorization to beneficiaries of approved employment-based immigrant visa petitions who face delays due to backlogs in immigrant visa availability,” according to the agency. “Beneficiaries who face adverse circumstances resulting from termination from employment and loss of nonimmigrant status, may qualify for an Employment Authorization Document (EAD) if they face compelling circumstances beyond the usual hardship associated with job loss.
“This compelling circumstances-based EAD is a temporary stopgap measure intended to address particularly difficult situations, including those that may have otherwise forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States. USCIS is now issuing guidance on EADs based on compelling circumstances to explain eligibility criteria and the adjudicatory process for reviewing and issuing such EADs.”
The guidance states that applicants would be eligible for an initial EAD based on compelling circumstances, if they met the following eligibility requirements:
- “The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the 1st, 2nd, or 3rd employment-based preference category;
- “The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765, Application for Employment Authorization;
- “The principal applicant has not filed an adjustment of status application;
- “An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765;
- “The applicant and their dependents provide biometrics as required;
- “The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
- “USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.”
The guidance notes the term “compelling circumstances” is not defined in the regulation, and officers have case-by-case discretion based on the evidence applicants provide.
The guidance provides examples—called “non-exhaustive” examples—when compelling circumstances may exist under current regulations.
Serious Illness and Disability: “A principal applicant or their dependent faces a serious illness or disability that substantially changes employment circumstances, such as requiring them to move to a different geographic area for their or a dependent’s treatment, or the illness or disability otherwise reduces or adversely affects the principal applicant’s ability to continue their previously approved employment.”
Employer Dispute or Retaliation: “A principal applicant is involved in a dispute regarding their employer’s alleged illegal or other forms of abusive conduct. The dispute may take the form of a whistleblower action, litigation, or other documented dispute.”
Other Substantial Harm to the Applicant: “The principal applicant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and would suffer substantial harm as a result. This harm may be financial or may be due to an inability to return to their home country due to conditions there. Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss. Job loss may be sufficient to establish financial hardship depending on the individual circumstances.”
Significant Disruption to the Employer: “As an example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area who has lived in the United States for a considerable period of time, and has school-aged children and a mortgage, may face compelling circumstances if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull the children out of school, and relocate to their home country. Note that not all of these elements (lengthy time in the United States, mortgage, and school-age children) are necessary for a case-by-case finding of compelling circumstances based on substantial harm to the applicant.”
The employment authorization documents for compelling circumstances can be renewed one year at a time and are not eligible for automatic extensions.
What The New Guidance Means
The guidance should help individuals who find themselves in unanticipated circumstance. It will make more explicit which situations are likely to qualify for immigration relief.
“The compelling circumstances EAD regulation was put in place in 2017, but practitioners did not try to use it very often during the Trump Administration,” said William Stock of Klasko Immigration Law Partners. “It is very helpful to have guidance from USCIS on the kinds of circumstances they envision justifying a ‘compelling circumstances’ EAD, such as a long-time nonimmigrant [temporary visa holder] who has been waiting for visa backlogs and has school-age children, who would have to sell their home, disrupt their children’s schooling and move abroad due to the lack of an H-1B visa sponsor. The memo makes clear that ‘compelling circumstances’ need not be ‘extreme’ or necessarily involve ‘hardship,’ and that the circumstances can include harm to an employer who would otherwise be deprived of the nonimmigrant’s leadership of a project or other key role.”
Still, applying for employment authorization based on compelling circumstances is unlikely to be an individual’s first choice, say attorneys. “As a practical matter, extending the nonimmigrant’s status with a new employer is nearly always preferable to a ‘compelling circumstances’ EAD,” said Stock. “Those eligible for a compelling circumstances EAD should also be eligible for H-1B extensions beyond the normal six-year limit, and H-1B status is a lawful nonimmigrant status and preserves the nonimmigrant’s ability to complete the green card process from within the United States. If the H-1B status cannot be extended for some reason, however—perhaps the employer and the nonimmigrant are having an employment dispute, or the nonimmigrant has a medical condition—then the exceptional circumstances EAD is a useful tool to prevent the nonimmigrant from having to leave the United States.”
The guidance should help people waiting for green cards laid off from their jobs. “They may not need much more than mere job loss since the memo identifies a combination of long-time residence, having a mortgage and having school-age children as meeting the standard but notes that all three would not be required,” according to Stock. “The EAD option could offer someone a bridge from one H-1B to another, though if the new H-1B was filed more than 60 days after the job loss, it may need to be obtained abroad. The primary benefit of the EAD application, in that instance, would be tolling the unlawful presence that might otherwise begin to accrue once the H-1B expires.
“The biggest limitation on its usefulness is that the option to apply is only there once an I-140 has been approved. The biggest group of ‘problem cases’ I have right now are caused by the longer and longer DOL processing times for Prevailing Wage Determinations and Labor Certification Applications.”
Attorneys Cyrus Mehta and Kaitlyn Box offer additional practical advice. “Recipients of an EAD based on compelling circumstances will likely need to look for other solutions if they wish to remain and work in the U.S. on a long-term basis until they obtain permanent resident status,” they note. A new employer must file a new labor certification and I-140 petition, and “could recapture” the old priority date. Consular processing might be possible when the priority date in the Visa Bulletin shows the immigrant visa is available. “A new employer could also file a new H-1B visa petition for the foreign worker alongside the new labor certification and I-140 petition,” according to Mehta and Box.
Waits for employment-based green cards can last years, even decades, due to the per-country limit and low annual levels for employment-based immigrant visas. The new guidance will likely encourage greater use of an existing agency tool to ensure high-skilled foreign nationals are not forced to leave the United States due to unforeseen circumstances.