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IMMIGRATION JUNE 30, 2023 | The Indian Eye 39

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expanded criteria will apply primarily to conditions for eligibility is that the ap- backlogs for oversubscribed countries, In the end, the compelling circum-
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nonimmigrant workers who have been plicant and dependents have not been there is a risk that older children may stances EAD is just a band aid and not
laid off or terminated from their jobs, convicted of a felony or two or more “age out”, or reach the age of 21, before a solution. There is no need for decade
not those who remain employed, and misdemeanors. the principal applicant’s priority date long backlogs in the legal immigration
applicants must still demonstrate com- Recipients of an EAD based on becomes current. system, and Congress must pass legis-
pelling circumstances, such as being compelling circumstances will likely A new employer could also file a lation to infuse more visas in each cat-
“forced to sell their home for a loss, pull need to look for other solutions if they new H-1B visa petition for the foreign egory as well as eliminate per country
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the children out of school, and relocate wish to remain and work in the U.S. worker alongside the new labor certifi- limits. While previously only India and
to their home country” due to the job on a long-term basis until they obtain cation and I-140 petition. Recipients of to a lesser extent China were impacted
loss. Furthermore, an EAD based on permanent resident status. An individ- a compelling circumstances EAD will by the backlogs, now all countries have
compelling circumstances confers no ual who finds new employment under a be in a period of authorized stay in the been impacted, and so everyone must
nonimmigrant status, and is intend- compelling circumstances EAD would U.S. and will not be maintaining their unite to demand more visas to ensure
ed only as a stopgap measure to assist need to have their new employer file nonimmigrant status. Thus, recipients that skilled workers with approved pe-
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nonimmigrants whose lives who be se- a new labor certification and I-140 pe- cannot extend their H-1B status in the titions be granted permanent residence
verely upended if their were forced to tition on their behalf, which could re- U.S. If the new employer files an H-1B within a reasonable period of time.
return to their home countries on short capture the old priority date from the petition for consular processing, howev-
notice. USCIS considers recipients of a previous I-140 petition under 8 CFR er, this would allow the foreign worker (This blog is for informational

compelling circumstances EAD to be § 204.5(e). The foreign worker and and their family to return to the U.S. purposes and should not be viewed as a
in a period of “authorized stay”. Thus, derivative family members such as the in H-1B/H-4 status after obtaining visa substitute for legal advice).
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recipients will not accrue unlawful pres- spouse and minor children could then stamps at an overseas consulate and
ence or trigger the 3- or 10-year bars to go abroad for consular processing when file for adjustment of status in the U.S. *Kaitlyn Box is a Senior Associate at
reentry, but are not provided with any the priority date becomes current under when the recaptured priority date be- Cyrus D. Mehta & Partners PLLC.
path to permanent residence. USCIS the Final Action Date. Due to lengthy comes current.
has not indicated that any automatic _________________________________________________________________________________________________________
extension will apply to EADs based on Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta & Partners
compelling circumstances, so recipients PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former
who need to apply for a renewal may chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate
temporarily lose work authorization Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal Ser-
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while the application is pending. Even vices and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American
the initial request for the EAD will take Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York City Bar Association.
He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an adjunct professor of law at
several months as the USICS has not Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein
indicated that applicants will be able Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstand-
to use premium processing and there is ing efforts in providing pro bono representation in the immigration field. He has also received two AILA Presidential Commendations
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also a biometrics requirement that can in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate
further hobble the process. One of the Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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