USCIS Releases New Guidance That Could Benefit Foreign Nationals Waiting For Employment-Based Green Cards

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On June 14, 2023, U.S. Citizenship and Immigration Services (USCIS) released policy guidance regarding applications for employment authorization documents (EAD) in “compelling circumstances.” This policy could benefit terminated H-1B visa employees in the middle of the employment-based green card process who wish to continue working in the U.S. after finding new employment.

To be eligible for the EAD based on compelling circumstances, the applicant must be able to show the following when filing Form I-765:

• The 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 applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or an authorized grace period when they file the EAD application;
• The applicant has not filed Form I-485 for adjustment of status; and
• The applicant’s priority date under the U.S. Department of State’s Visa Bulletin is not current (i.e., an immigrant visa is not available) when they file the EAD application.

Additionally, the applicant will have to attend a biometrics appointment at USCIS and attest that they have not been convicted of a felony or two or more misdemeanors. Based on these criteria, USCIS will determine whether the applicant demonstrates compelling circumstances for purposes of approving the EAD.

Although the policy guidance does not define “compelling circumstances,” USCIS has historically considered serious illness and disability, employer dispute or retaliation, substantial harm to the employee, or significant disruptions to the employer as common examples.

The waiting times for employment-based green cards can last years, and even decades, in the case of Indian nationals. For example, an Indian national with an H-1B visa and approved I-140 may show compelling circumstances after termination if there is a lengthy history of residing in the U.S. The policy guidance provides that examples of long-term status in the country could include “school or higher education enrollment records, mortgage records, or long-term lease records.” To further support job loss as a reason for compelling circumstances, USCIS states that the applicant could submit evidence of being forced to sell a home for a loss, removing children from school, and relocating to one’s home country.

Recipients of the EAD based on compelling circumstances should know that the EAD does not confer a nonimmigrant status, so it is not a long-term immigration solution. When the EAD applicant is hired for a new job, the employer will need to sponsor the employee for an H-1B visa (if applicable) and initiate the PERM and I-140 sponsorship process so the employee will be able to continue with the green card process.

For additional information about employment-based visas and immigration compliance, contact any member of Maynard Nexsen’s immigration team.