US DHS Final Rule on High Skilled Workers Provides for Employment Authorization under Compelling Circumstances

December 14th, 2016

On November 18, 2016, the Department of Homeland Security published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. This final rule will become effective on January 17, 2017. Among the benefits provided by this rule is that of employment authorization for certain beneficiaries of approved I-140s where they can demonstrate compelling circumstances. However, this benefit will help an extremely narrow segment of the foreign worker population. If possible, the foreign worker should avoid using it if green card status is ultimately sought.

The provision allowing for an initial employment authorization document (EAD) based on compelling circumstances requires the following:

• The applicant is in the US in E-3, H-1B, H1B1, O-1 or L1 nonimmigrant status at the time of filing (the status need not continue until the EAD is issued);
• The applicant has an approved I-140 in the EB1, Eb-2 or EB-3 category;
• The applicant’s priority date is not current;
• The applicant can demonstrate compelling circumstances; and
• The applicant has no convictions for a felony or two or more misdemeanors.

The EAD is issued in one-year increments. Dependent spouses and children may also obtain EAD and for the same period as the principal applicant.

The rule also allows for renewals of EADs under this provision so long as the applicant satisfies the following requirements:

• Files the I-765 prior to expiration of the current EAD;
• Continues to be the beneficiary of an approved Form I-140 in the EB-1, EB-2 or EB-3 category; and
• Meets one of the two requirements:

 (1) The applicant’s priority date is backlogged and compelling circumstances continue; or
 (2) There is less than one year between the beneficiary’s priority date and the final action date (no compelling circumstances are required to be shown).

The rule provides no bright line rule for what will be considered “compelling,” but it does provide some examples, such as:

• Serious illness or disability for the applicant or relative that causes relocation;
• Employer dispute and retaliation;
• Other substantial harm, such as financial hardship, termination of employer’s business or hardship to the applicant if forced to return to the applicant’s foreign country; and
• Significant disruption to the employer’s operations if the applicant loses work authorization.

The following are examples of what is not considered “compelling”:

• Loss of a job;
• An extraordinary wait to apply for legal permanent residency;
• Seeking advance education;
• Dissatisfaction with the salary;
• The deleterious impact on the spouse’s career; and
• The desire to move into a more entrepreneurial situation.

What is most important to note about this form of EAD is that it does not confer status in the US; the applicant will only obtain work authorization and will no longer be working in nonimmigrant visa status. However, during this period of working with the EAD the applicant will be considered to have authorized stay in the US so that the three or ten-year bars to admission of INA §212(a)(9)(B) would not be triggered.

It is also crucial to understand that a foreign national working pursuant to this EAD without nonimmigrant visa status will not be able to adjust status to legal permanent residency in the US. Maintaining nonimmigrant status is a requirement to apply to adjust status to legal permanent residency in the US. Therefore, if the applicant wants to pursue legal permanent residency he or she would have to reacquire nonimmigrant status (such as an H-1B or L-1B) before filing the Form I-485 to adjust. Also, in order to obtain legal permanent residency there must be an active Form I-1-40, meaning that there is an employer still sponsoring the applicant. Therefore, if the first I-140 employer no longer is providing sponsorship the applicant must seek a new I-140 sponsor and obtain a new approved I-140.

Also, EAD based on compelling circumstances does not grant advance parole travel permission. The applicant could request advance parole based on urgent humanitarian reasons or significant public benefit, but these are challenging cases. Therefore, the applicant should be prepared to not travel abroad during this period.
Additional disadvantages to working in the US pursuant to compelling circumstances EAD are the following:

• It is at USCIS’ discretion (and therefore arbitrary) whether to find a situation compelling;
• There is no guaranteed processing time; and
• There is no automatic extension of work authorization upon filing the renewal.

Therefore, the foreign national should apply for the compelling circumstances EAD in a truly emergent situation. One such dire circumstance under which a foreign national could apply for the compelling circumstances EAD is where it is viewed as a very temporary hiatus in nonimmigrant visa status. For example, an H-1B employee may need to temporarily terminate his H-1B employment because of a medical condition and then his original H-1B employer or a new employer can file a new petition for him.

Court Finds Beneficiary Has Standing to Challenge Denial of Petitioner’s Form I-140 Immigrant Visa Petition

October 16th, 2013

The Sixth Circuit for the US Court of Appeals has found that under the APA the beneficiary has procedural standing to challenge the denial of his employer petitioner’s Form I-140 immigrant visa petition on his behalf.  Patel v. USCIS,
10/11/13 (No. 12-1962).   The court provided the following reasoning for its decision.  Under the Administrative Procedure Act (APA), a party has prudential standing (ability to sue) if he is adversely affected by a US government action.  A party is adversely affected if the interest he seeks to protect is protected or regulated by a statute that the party claims was violated.  In this case,  that statute is 8USC §1153(b)(3), which states in relevant part that visas shall be made available to qualified applicants under the labor certification process under certain conditions.  Therefore it expressly provides for issuance of employment visas directly to qualified aliens and the qualified alien who wants one of these visas is within the protected zone.  In other words, it suggests that Congress gave the immigrant a stake in the visa process, since it is the immigrant and not the employer who is entitled to the immigrant visa.  The Court also referred to two other provisions to corroborate this conclusion:  (1) 8USC §1255(b) that provides for a permanent, as opposed to a temporary, visa under 8USC §1153(b)(3); and (2) the adjustment of status (I-485) portability provisions of 8 USC §1154(j) and 8 USC §1182(a)(5)(A)(iv).  Furthermore, the Court referred to other cases finding standing for the beneficiary to challenge the denial of his employer’s I-140 petition for an employment visa.

Worldwide EB-2 Preference Category to Regress to January 2009

June 26th, 2012

The US Department of State’s release of the Visa Bulletin for July 2012 shows the establishment of a cut-off date of January 1, 2009, for the worldwide EB-2 preference category.  This is due to the continued heavy demand for numbers in the EB-2 preference category (there are only 140,000 visa numbers available each year).   China and India EB-2 will remain “unavailable”  for the remainder of the fiscal year.  If demand is considered “heavy” during these economic doldrums then it is hard to imagine how much further they can backlog when the economy strengthens.

Let’s hope that some of the pending legislation will alleviate this growing backlog, including:

S. 3192, SMART Jobs Act, introduced by Senators Alexander (R-TN) and Coons (D-DE) on May 16, 2012. S. 3192:  This creates an F-4 nonimmigrant visa for
students pursuing an advanced degree in mathematics, engineering technology, or the physical sciences in the US and provides them with legal permanent residency if they obtained employment related to their field of study.

S. 3185, the STAR Act, introduced by Senator Cornyn, which allocates 55,000 immigrant visas for eligible STEM (science, technology, engineering, math) graduates of qualifying U.S. research institutions who have job offers in related fields. This is made possible by the elimination of the diversity visa program, which is a lottery for legal permanent residency for residents of certain low-demand countries.

 

In May 2009, EB-3 Category Freezes for 5 Months

April 9th, 2009

The US Department of State’s May 2009 Visa Bulletin shows that immigrant visas in the EB-3 category will be unavailable for the next 5 months.  Previously, the wait was approximately six years, which now seems attractive compared to the 5-month freeze.  The implications of this suspension is pervasive and dire.

An immigrant visa number must be made available in order for a foreign worker to apply for legal permanent residency.  Also, for most employment-based immigrants, they are sponsored by their employers and their employers must demonstrate their ability to pay the wage proffered on the labor certification or immigrant visa petition (if there was no labor certification) from the time the labor certification or immigrant visa petition was filed and up until the application for legal permanent residency is approved.  If the employer has a bad year, or several bad years, then this could jeopardize the green card case.

While they are waiting for an immigrant visa number, foreign workers must maintain their nonimmigrant visa status.  For those on the H-1B petition, if they start the green card process early enough then they can extend their H-1B status until an immigrant visa number becomes available.  However, for other nonimmigrants, they will simply lose their status during the ostensibly interminable wait.

Many foreign workers, some of whom are our most prized possessions (Ph.D.s and master’s degree holders in the sciences, technology, engineering or math), may decide that their patience has worn too thin and go to Europe or Asia instead.  We must reverse this deleterious visa situation and grant foreign workers a reasonable path to green card status.

Bill to Level Employment-Based Visas Numbers Among Countries

September 11th, 2008

On April 29, 2008, Representative Zoe Lofgren (D-CA) introduced H.R. 5921:  High Skilled Per Country Level Elimination Act.  According to the Congressional Research Service, this Act “amends the Immigration and Nationality Act to: (1) eliminate the per-country numerical limitation for employment-based immigrants; (2) increase the per-country numerical limitation for family-sponsored immigrants; (3) establish the fiscal year worldwide level of employment-based immigrants at 140,000 plus the previous year’s unused visas; and (4) establish the fiscal year worldwide level of family-sponsored immigrants at 480,000 minus the number of certain aliens not subject to direct numerical limitations plus the previous year’s unused visas (such annual level shall not be less than 226,000.)” 

On June 3, 2008, it was referred to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.  To read the full text, go to the government tracker website.

USCIS Clarifies 245(k) Exemption

July 30th, 2008

Donald Neufeld, Acting Associate Director, Domestic Operations for USCIS, in a memo published July 14, 2008, explains how section 245(k) of the Immigration and Nationality Act (the Act) renders waives three grounds of inadmissibility to adjustment of status to legal permanent residency under section 245(c).  He states that 245(k) waives status violations, unauthorized employment and other violations of the alien’s admission normally applicable to employment-based adjustment of status applicants, provided that, since the applicant’s last lawful admission to the United States, the violations did not occur for more than an aggregate period of 180 days.  He states that 245(k) applies to the EB1 through EB-4 categories and to the eligible derivatives of the applicants in these categories. 

The following is a summary of other key parts of the memo:

1.  “USCIS reads the phrase “aggregate period exceeding 180 days” in section 245(k)(2) to refer to the total of all three types of violations rather than permit up to 180 days of each type of violation.”

2.  “The adjudicator must only examine the period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.”

3.  “An alien, however, who entered the United States pursuant to an advance parole document is not “lawfully admitted,” because the parole is not a final act with respect to admission. Thus, reentry based on a parole or advance parole does not start the clock over for the purpose of section 245(k).”

4.  “[A]ll periods of unauthorized employment since the date of the alien’s last lawful admission, including any periods after the filing of an application for adjustment of status, must be counted until the date of the adjudication of the pending adjustment of status application.”

5.  “With respect to engaging in unlawful employment, the count commences on the first date of the unauthorized employment and continues until the date the unauthorized employment ended, the date an employment authorization document (EAD) is approved, or the date the pending adjustment of status application is adjudicated.”

6.  “Unlike an alien who has failed to maintain lawful nonimmigrant status, an alien who has worked without authorization may unilaterally avoid the accrual of additional days counted against such violation by simply terminating the unauthorized employment.”

7.  “An alien’s engagement in unauthorized employment is dependent upon the existence of the alien’s employment or employer-employee relationship rather than simply the number of days the alien actually works or claims to have worked. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off. Absent evidence of interruptions in unauthorized employment, the adjudicator must consider each day since the date the unauthorized employment began as a day of unauthorized work regardless of the work schedule agreed to or maintained by the alien for the particular employer. For example, if an alien worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment.”

8.  “In most cases, the 180-day counting period commences on the date the alien’s status expires, is revoked, or is violated following the alien’s most recent admission.”

9. “With the exception of a dual intent nonimmigrant, a nonimmigrant is only required to maintain his or her nonimmigrant status until the time he or she properly files an adjustment of status application with USCIS. . .” 

10.  “[F]or purposes of the 180-day counting period, calculation of the number of days for failing to maintain status or violating a nonimmigrant visa will stop as of the date USCIS receives a properly filed adjustment of status application.”

11.  “In examining any period where an application for extension of stay (EOS) or change of status (COS) was ultimately approved, the period during which the EOS or COS had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status regardless of whether the EOS or COS application was timely or untimely filed. The period would not be disqualifying for section 245(c) purposes, and the period would not count against the 180-day period.”

12.  “The period during which an alien has a pending EOS, COS, or adjustment of status application does not constitute, in and of itself, a period in which the alien is in a lawful “status.” This means that if the EOS or COS is denied, the time during which either was pending will be counted toward the 180-day aggregate period.

13.  If the period of unlawful status results from only a “technical violation” or through no fault of the applicant, then “such period does not count against the 180-day period.”

USCIS Announces Two-Year EADs

July 24th, 2008

On June 12, 2008, USCIS announced that it will issue Employment Authorization Documents (EAD) valid for two years. According to USCIS, the two-year EAD is only available to pending adjustment applicants (filed Form I-485) who have filed for EAD and who are currently unable to adjust status because an immigrant visa number is not currently available.  Also, USCIS requires that the Form I-140 be approved.  USCIS will continue to grant EADs that are valid for one year for adjustment of status applications who have an available immigrant visa number. 

USCIS to Issue Two-Year EADs

June 11th, 2008

According to DHS Secretary Michael Chertoff, at a State of Immigration Address on June 9, 2008, USCIS will begin issuing employment authorization documents (EAD) valid for two years instead of one year, as they are currently issued, for adjustment of status applicants.  He states:

“I’m also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residenture or colloquial phrase, the green card. Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we’ll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year. This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year.” 

FBI Background Check System Has Serious Deficiencies

June 10th, 2008

The Washington Post  reported that “The FBI system for checking the names of immigration applicants suffers from ‘serious deficiencies’ that have produced overwhelming backlogs and questions about the reliability of the information, an internal audit has found. The bureau’s name checks have fallen victim to ‘outdated and inefficient technology’ as well as inadequately trained employees, according to a report issued yesterday by the Justice Department inspector general.”

The relatively recent news related to the backlog in background checks is that USCIS will now approve adjustment of status cases (Form I-485) pending for at least six months even if the background checks have not cleared. If negative information is discovered after the approval, then USCIS can take action.  USCIS needs to extend this policy to naturalization and asylum cases as well.

USCIS Revises Name Check Policy

February 7th, 2008

USCIS has revised its requirement that the FBI name check clearance be obtained before any immigration benefits applications can be approved, regardless of the processing times for such clearance.  According to Michael Aytes, Associate Director, Domestic Operations, USCIS, dated February 4, 2008, “Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the 1-485,1-601,1-687, or 1-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe.” However, the FBI fingerprint check, IBIS check and FBI name check must still be completed in order for Form N-400 (naturalization) to be approved.