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IMMIGRATION JUNE 30, 2023 | The Indian Eye 38

USCIS Broadens Compelling Circumstances

Parameters for Skilled Immigrants in the Green

Card Backlogs So That They Can Continue to

Work in the US Even After Job Loss

CYRUS D. MEHTA and offs have a particularly harsh based preference. plemented a version of this sug- es employment circumstances”
KAITLYN BOX* impact on Indian born H-1B Among the suggestions gestion, broadening the criteria or financial hardship “when
workers who are caught in posed in our previous blog was for implementing EADs based coupled with circumstances
n our previous blog, we the employment based green the recommendation that the on compelling circumstances beyond those typically associat-
suggested several ways card backlogs. Skilled workers Biden administration employ- specifically linked to job termi- ed with job loss”, such as when
Ithat the Biden administra- born in India must wait de- ment authorization documents nation. It is no coincidence that termination would cause an
tion could follow to allow non- cades to become permanent (EADs) to laid off nonimmi- the parameters for compelling applicant with a serious medi-
immigrant workers who have residents, remaining depen- grant workers based on com- circumstances have broadened cal problem to lose their health
been laid off to remain in the dent on their employers to file pelling circumstances under 8 now that beneficiaries of ap- insurance. Applicants who can
U.S. As major tech companies continued nonimmigrant visa CFR § 204.5(p). As discussed proved I-140 petitions from all demonstrate that their inabil-
continue to lay off workers, petitions on their behalf in the in the prior post, this provision countries are facing visa ret- ity to change or extend their
nonimmigrant employees are meantime. In recent months, allows EADs to be issued to in- rogression as opposed to only status would result in a serious
often left with few pathways to the State Department Visa dividuals in E-3, H-1B, H-1B1, India. In a June 14, 2023 Pol- disruption to their employers,
continue working in the U.S. Bulletin has reflected that O-1 or L-1 nonimmigrant sta- icy Alert, USCIS states that it such as where “due to the prin-
if they cannot quickly secure all countries of the world are tus if they can demonstrate “may provide employment au- cipal applicant’s knowledge or
alternate employment. H-1B now subjected to retrogression compelling circumstances thorization to beneficiaries of experience, their loss would
visa holders are allowed only a in most of the employment and are the beneficiaries of approved employment-based negatively impact projects and
60-day grace period to change based preferences although approved I-140 petitions, but immigrant visa petitions who result in significant monetary
or extend their nonimmigrant Indians still bear the brunt due their priority dates are not face delays due to backlogs loss or other disruption to the
status in the U.S. following a to additional per country lim- current. Although DHS has in immigrant visa availability. employer”, may also be eligi-
termination, after which they its within each employment never precisely defined what Beneficiaries who face adverse ble for EADs based on com-
must depart the country. Lay- constitutes “compelling circumstances resulting from pelling circumstances. The
circumstances”, the exam- termination from employment Policy Manual further states
ples provided in the pre- and loss of nonimmigrant sta- that “reaching the maximum
amble to the high skilled tus, may qualify for an Employ- statutory or regulatory peri-
worker rule that took ef- ment Authorization Document od of allowed nonimmigrant
fect on January 17, 2017 (EAD) if they face compelling status does not, without com-
included serious illness circumstances beyond the usu- pounding factors, constitute
and disabilities, employer al hardship associated with job compelling circumstances. An
dispute or retaliation, oth- loss.” According to the USCIS officer may consider this fac-
er substantial harm to the Policy Manual, principal appli- tor in determining whether the
worker, and significant cants must demonstrate that applicant merits a favorable
disruptions to the em- they are the beneficiaries of exercise of discretion”. EADs
ployer. DHS has also sug- an approved I-140 petition, in based on compelling circum-
gested loss of funding for valid E-3, H-1B, H-1B1, O-1, stances will be valid for up to
grants that may invalidate or L-1 nonimmigrant status or one year, and spouses and chil-
a cap-exempt H-1B status authorized grace period at the dren of a principal applicant
or a corporate restruc- time Form I-765 is filed, have who receives a compelling-cir-
ture that render an L-1 not filed a Form I-485 Appli- cumstances EAD are also eli-
visa status invalid might cation to Register Permanent gible. The EAD is renewable
constitute significant dis- Residence or Adjust Status, for an additional year based on
ruption to the employer. and that an immigrant visa is 1) either a continuing showing
USCIS has historically not available based on the ap- of compelling circumstances or
issued EADs based on plicant’s priority date accord- 2) if the difference between the
compelling circumstanc- ing to the relevant Final Action applicant’s priority date and
m of es very seldomly as mere Date in the U.S. Department the Final Action Date for the
unemployment
would
of State (DOS)’s Visa Bulletin applicant’s preference catego-
CYRUS D. MEHTA & PARTNERS PLLC not rise up to the level of in effect at the time the ap- ry and country of chargeability
compelling circumstanc- plicant files Form I-765 in or- is 1 year or less according to

es, and more needed to der to be eligible for an EAD the Visa Bulletin in effect on
have been shown such as based on compelling circum- the date the applicant filed the

  that the unemployment stances. USCIS does not pro- renewal application.
   
­
€
‚   was as a result of a serious vide an exhaustive list of the While some nonimmi-
illness, employer retal- scenarios that could constitute grant workers who have been
iation or the skills used compelling circumstances, but laid off will no doubt be able
by the worker in the US outlines several examples in to benefit from the broadened
could not be utilized in the Policy Manual, which in- criteria to obtain EADs and re-
2 6th Floor the home country. clude “a serious illness or dis- main in the U.S., the measure is

    USCIS recently im- ability that substantially chang- still quite narrow in scope. The

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