Employment Authorization in Compelling Circumstances (New Provision Effective Jan. 17, 2017)

 

Introduction

Compelling Circumstances EADOn November 18, 2016, the Department of Homeland Security published a new final rule in the Federal Register (FR) titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” (see 81 FR 82398) [PDF version]. The rule came into effect on January 17, 2017. To read an overview of all of the changes in the 95-page rule, please see our full article [see article].

In this article, we will examine the amended regulations in 8 C.F.R. 204.5(p). These regulations allow for certain alien beneficiaries of employment-based immigrant visa petitions who are also in certain nonimmigrant statuses to be eligible for employment authorization in compelling circumstances. As we will discuss, individuals who are eligible may have to weigh several factors in determining whether to avail themselves of the employment authorization in compelling circumstances provision. In this article, we will examine the new regulations and their implications for those who may benefit from them.

For the text of the current 8 C.F.R. 204.5(p), please see the following link [PDF version].

Eligibility for Employment Authorization in Compelling Circumstances

In order to be eligible for employment authorization in compelling circumstances under the new 8 C.F.R. 204.5(p), the individual must meet several requirements.

Firstly, under 8 C.F.R. 204.5(p)(1), the individual must be the principal beneficiary of an approved immigrant visa petition in the employment-based first, second, or third preference categories (see sections 203(b)(1), (2), and (3) of the Immigration and Nationality Act (INA)). At 82 FR 82430, the DHS makes clear that beneficiaries of EB2 national interest waivers and physicians working in medically underserved areas are eligible to apply for employment authorization based on compelling circumstances, provided that they meet all of the requirements.

Secondly, under 8 C.F.R. 204.5(p)(1)(i), the beneficiary of the approved EB1, EB2, or EB3 petition must be in one of the following nonimmigrant statuses at the time of an initial request for employment authorization:

  • E3;
  • H1B;
  • H1B1;
  • O1; or
  • L1.

Such an individual may be eligible if he or she is in one of the above statuses in any authorized period of admission. This includes any applicable grace periods.

Thirdly, 8 C.F.R. 204.5(p)(1)(ii), specifies that the individual will only be eligible if an immigrant visa is not authorized for issuance to him or her based on the individual's priority date as of the date that the application for employment authorization is filed.

Fourthly, under 8 C.F.R. 204.5(p)(1)(iii), the United States Citizenship and Immigration Services (USCIS) must determine — as a matter of discretion — that the principle beneficiary who is seeking employment authorization has demonstrated that “compelling circumstances” justify the issuance of such employment authorization.

Under 8 C.F.R. 204.5(p)(4), employment authorization may be granted only for one 1 year. However, as we will explain, an individual may seek renewal of employment authorization before that 1 year expires.

Eligibility for Spouse and Children of the Principal

Under 8 C.F.R. 204.5(p)(2), certain family members of the principal beneficiary may be eligible for employment authorization in compelling circumstances, provided that the principal is first granted employment authorization under 8 C.F.R. 204.5(p). In order to be eligible, the family member(s) must be described by section 203(d) of the INA. Section 203(d) allows for the spouse or child of the principal to be afforded the same status and order of consideration as the principal in seeking an immigrant visa if he or she is accompanying or following to join the principal.

The family member must be in lawful nonimmigrant status in the United States at the time of the application. In order to be granted employment authorization, the principal must have been granted employment authorization and that employment authorization must not have been terminated or revoked.

A family member may apply for employment authorization concurrently with the principal. However, as we noted, the family member's application cannot be approved until the principal's application is approved. The validity period of the employment authorization for a family member cannot extend past that of the principal.

Eligibility for Renewal of Employment Authorization

An individual may seek renewal of employment authorization granted due to compelling circumstances. The rules for renewal are found in 8 C.F.R. 204.5(p)(3).

The first scenario in which an individual may be granted renewal is if he or she meets most of the same requirements that exist for an initial application. Under 8 C.F.R. 204.5(p)(i)(A), this means that the individual must only not be authorized to apply for an immigrant visa based on his or her priority date at the time of the renewal application, he or she must also demonstrate “compelling circumstances” that justify the issuance of employment authorization. Notably, however, the principal is no longer required to be maintaining E3, H1B, H1B1, O1, or L1 nonimmigrant status.

At 82 FR 82425, the DHS states that it “recognizes that an applicant may seek to renew his or her compelling circumstances EAD on a different basis than that asserted on the initial application.

Alternatively, 8 C.F.R. 204.5(p)(i)(B) provides a limited way for certain individuals to procure employment authorization renewal without having to establish compelling circumstances. Under this provision, the principal is eligible for renewal if the difference between his or her priority date and the date on which an immigrant visa will be available is one year or less according to the applicable Final Action Date on Department of State (DOS) Visa Bulletin that is in effect at the time that the renewal application is filed. In this scenario, no demonstration of compelling circumstances is required.

8 C.F.R. 204.5(p)(ii) sets forth the rules for renewal for family members of the principal. The family member must meet all of the requirements that he or she would have had to have met in making an initial application (see previous section) and, unlike the principal, must still be in nonimmigrant status in order to be granted renewal. A family member may seek renewal concurrently with the principal or file after the principal, but the family member's renewal cannot be granted unless the principal's is. The validity period of the family member's employment authorization may not extend past the principal's.

Application for Employment Authorization

The application for employment authorization under 8 C.F.R. 204.5(p) is made by filing the Form I-765, Application for Employment Authorization, in accordance with the form instructions. The Form I-765 must be filed with the requisite fees.

Ineligibility

Under 8 C.F.R. 204.5(p)(5), the principal will not be eligible for employment authorization (including renewal) if he or she has been convicted of any felony or of two or more misdemeanors.

Defining “Compelling Circumstances”

At 82 FR 82428, the DHS explained that in the Notice of Proposed Rulemaking, the DHS had offered a non-exhaustive list of “situations that, depending on the totality of the circumstances, may be considered compelling and justify the need for employment authorization”:

  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.

First the DHS responded to comments requesting that it offer it a clear definition of “compelling circumstances” in the regulation. In response, the DHS explained that, while it recognized the concerns in the comments, providing a clear definition of “compelling circumstances” would have the “effect of limiting DHS's flexibility to recognize the various circumstances that could be considered compelling.” For this reason, the DHS declined to offer a “more concrete and limiting” definition of the term.

The DHS instead offered at 82 FR 82428-82429 a more detailed list of situations that may represent compelling circumstances. It is important to note that the following list is non-exhaustive and is only a sample of circumstances in which “compelling circumstances” may be established.

  • Serious Illnesses and Disabilities. If the applicant can show that he or she or a dependent is facing a “serious illness or disability” that would require moving to a different geographic area for treatment or that would otherwise substantially change his or her employment circumstances, the applicant may be able to establish “compelling circumstances.”
  • Employer Dispute or Retaliation. The applicant may establish that he or she is involved in an employer dispute based on the employer's alleged illegal or dishonest conduct by submitting a complaint filed with a relevant government agency or court and by showing that the employer has taken retaliatory action that justifies the granting of a compelling circumstances EAD. The DHS notes that “harassment” by the employer may meet the standard in certain cases. However, a labor dispute by itself is not sufficient to establish compelling circumstances.
  • Other Substantial Harm to the Applicant. The applicant may seek to demonstrate that, due to compelling circumstances, he or she would be unable to timely extend nonimmigrant status or otherwise maintain lawful status and that, absent a compelling circumstances EAD, the applicant and/or his or her family would suffer “substantial harm.” The DHS explains that “substantial harm” may be tied to financial hardship facing the applicant or his or her spouse and children. The examples offered by the DHS establishing that “substantial harm” would be incurred involve where the applicant and is or her family had to return to their home country.
  • Significant Disruption to the Employer. In order to establish “compelling circumstances” through significant disruption to the employer, the applicant must show that due to compelling circumstances: (1) He or she is unexpectedly unable to timely extend or change status; (2) There are no other possible avenues for the immediate employment of the applicant with his or her current employer; and (3) The worker's departure would cause the petitioning employer substantial disruption. This ground is interesting in that it is the only one specifically noted by the DHS that involves damage to the employer. The DHS notes that “a time delay in project completion” would, by itself, be unlikely to rise to the level of “compelling circumstances”. However, it may if combined with other factors, such as the cost to the employer to recruit a new worker or the potential damage to the employer's reputation. The DHS offers two additional examples of circumstances where this may hold. First, if the employer of an L1 nonimmigrant were to undergo corporate restructuring that would render it no longer eligible to employ L1 workers, compelling circumstances for “significant disruption to the employer” may be applicable depending on the facts of the case. The second example involves a non-profit entity employing a cap-exempt H1B employee that suddenly becomes a for-profit entity and thus ineligible to employ a cap-exempt H1B employee.

The DHS explains that “reaching the statutory temporal limit on an individual's status” will not by itself be a “compelling circumstance.” This means, for example, that reaching the 5-year limit on L1B status is not alone sufficient to establish “compelling circumstances.” However, the DHS states that this could be considered a factor in conjunction with other applicable factors in establishing “compelling circumstances.”

The DHS takes the position that “job loss” by itself will not be considered substantial harm to the applicant. However, if the applicant can show “additional circumstances that compound the hardship associated with job loss,” the individual may establish eligibility for a compelling circumstances EAD. Similarly, unemployment alone is not a compelling circumstance, but it may rise to that level in conjunction with other factors.

The DHS takes the position that long wait times for an immigrant visa does not constitute a compelling circumstance.

The DHS takes the position that circumstances relating to a start-up business could be relevant to establishing compelling circumstances; however, there must be other factors to rise to compelling circumstances.

The DHS makes clear in the regulation that under 8 C.F.R. 204.5(p) there is no age-out protection for derivative children.

Potential Hurdles to Adjustment of Status

The DHS noted at 82 FR 82427 that several commenters were concerned that the compelling circumstances EAD “has limited value because it introduces additional hurdles for individuals who wish to ultimately adjust their status domestically.” This is because using the compelling circumstances EAD would require the individual to relinquish his or her nonimmigrant status, thus foreclosing the possibilities of remaining in such status or changing status from within the United States. Not being in nonimmigrant status would make it impossible for the individual to adjust status, meaning he or she would likely have to depart the United States eventually and undergo consular processing to either obtain a different nonimmigrant visa or to obtain his or her immigrant visa.

The DHS acknowledges these concerns and explains that the compelling circumstances EAD is an additional option available to certain nonimmigrants who may be eligible to use it. The DHS notes that certain individuals who are eligible may decline to seek a compelling circumstances EAD based on the facts of their specific situations.

Advance Parole

The DHS discusses parole for persons on compelling circumstances EADs at 82 FR 82435-82436. The DHS explains that it will generally not grant advance parole [see article] to such an individual because the individual would be unlikely to be eligible for adjustment of status upon return. However, the DHS will consider granting advance parole to an individual on a compelling circumstances EAD on a case-by-case basis “for urgent humanitarians reasons or significant public benefit.”

Conclusion

The new regulatory provision for employment authorization in compelling circumstances is an option in limited cases for individuals in certain nonimmigrant statuses with approved Forms I-140 who are awaiting an immigrant visa. Before seeking a compelling circumstances EAD, it will be important to consult with an experienced immigration attorney. First, in order to establish eligibility, the applicant will be required to submit evidence showing that his or her situation rises to the level of “compelling circumstances.” Secondly, working under a compelling circumstances EAD will cause the individual to relinquish his or her nonimmigrant status, which will most likely mean that he or she will have to eventually depart in order to obtain an immigrant visa through consular processing. For this reason, it is important for individuals who may be eligible for eligible for employment authorization in compelling circumstances to work with an attorney for a full understanding of all of their options and of the implications that a compelling circumstances EAD may have on their specific immigration situations.

To see our overview of the final rule and links to our detailed articles on specific parts, please see our full article [see article].