Compelling Circumstances EAD Rule

On January 17, 2017, the Department of Homeland Security (DHS) began implementing its amended regulations regarding certain employment-based immigrant and nonimmigrant visa programs. The government published its final rule regarding the proposed changes in November 2016. The final rule provides the text of the new and revised regulatory language as well as DHS’s responses to comments on the proposed changes.

Among other provisions, the final rule provides a “stopgap measure” in the form of temporary employment authorization to certain nonimmigrants with approved employment-based immigrant visa petitions who are caught in the continually expanding backlogs for immigrant visas and face “compelling circumstances.”

Eligibility Requirements

A temporary employment authorization document (EAD) may be issued to a nonimmigrant worker if the following criteria are met on the date of application:

  1. The applicant is in the U.S. in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status;
  2. The applicant has an approved Form I-140 petition in the EB-1, EB-2, or EB-3 category;
  3. The applicant’s priority date is not yet current per the Final Action Date chart in the most recently-published Visa Bulletin;
  4. The applicant can demonstrate that he or she is facing a compelling circumstance.

A renewal of one’s “compelling circumstances” EAD is permitted if one of the following applies:

  1. The applicant continues to face compelling circumstances and an immigrant visa is not yet available based on his or her priority date; or
  2. The difference between the applicant’s priority date and the relevant Final Action Date is 1 year or less.

The applicant’s spouses and children are eligible to receive this work authorization and may apply concurrently with the principal. Likewise, these family members may also seek renewal of the EAD.

Individuals with a felony conviction or two or more misdemeanor convictions are ineligible to apply.

Procedure

Applicants will file Form I-765 prior to the expiry of their current nonimmigrant status or during a DHS-authorized “grace period.”  Applicants may need to attend a biometrics appointment shortly after filing the application and will therefore need to pay the appropriate fee for this service. Employment authorization based on compelling circumstances can only be issued for a maximum period of one year.

Policy

This measure provides short-term relief to high-skilled individuals who are already on the path to lawful permanent residence, but who find themselves in particularly difficult situations generally outside of their control while they wait for their immigrant visas to become available. DHS advocates that retaining these high-skilled nonimmigrant workers in the U.S. is important “when considering the contributions of these individuals to the U.S. economy, including through contributions to entrepreneurial endeavors and advances in research and development.”

What Constitutes a “Compelling Circumstance?”

 The final rule provides a non-exhaustive list of circumstances that DHS may consider to be “compelling”:

  1. Serious illness or disability faced by the nonimmigrant worker or his or her dependent;
  2. Employer retaliation against the nonimmigrant worker;
  3. Other substantial harm to the applicant; and
  4. Significant disruption to the employer.

Per the final rule, the following circumstances are not considered “compelling”:

  1. Approaching or reaching the statutory temporal limit on one’s nonimmigrant status, unless hardship can be shown;
  2. Job loss and unemployment, unless an applicant can indicate additional circumstances that worsen the hardship associated with the job loss;
  3. Long waits for an immigrant visa;
  4. Home ownership; and
  5. Dissatisfaction with one’s position or salary.

DHS will apply discretion when determining whether circumstances are sufficiently compelling to justify issuance of an EAD on a case-by-case basis.

What You Should Know

 Applicants will lose their current nonimmigrant status once they receive a “compelling circumstances” EAD.  These individuals will generally not accrue unlawful presence during the validity period of the EAD, but they will no longer be able to adjust their status to Lawful Permanent Resident while present in the U.S.  As a result, the applicant will need to depart the U.S. and obtain an immigrant visa through consular processing, which can be a lengthy and costly process and may bring uncertainty for individuals and family members.

Individuals who are granted these EADs and subsequently seek employment in a different nonimmigrant classification must depart the U.S. and obtain an appropriate visa from a consular post abroad prior to commencing the new employment.

Finally, DHS will not automatically grant travel authorization (“advance parole”) in conjunction with all compelling circumstances EADs. DHS will “consider” granting advance parole “as appropriate for urgent for urgent humanitarian reasons or significant public benefit” on a case-by-case basis.

BIL’s Advice

Interested applicants should carefully weigh the benefits and drawbacks associated with obtaining a “compelling circumstances” EAD. In many cases, the unattractive features of this measure will outweigh its benefits. In other cases, this is the best alternative available.

If you believe you may be eligible for a compelling circumstances EAD, please call our office today to speak with an attorney.