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.