USCIS to allow I-765 EAD with an approved I-140 due to I-485 Retrogression. USCIS just issued a Policy Alert that now allows for an I-765 EAD if the applicant has an approved I-140 even if the I-485 priority date is not current. This is an interesting development and that will allow certain individuals to continue to reside and work in the U.S. However, what appears to be a very promising new development, has significant restrictions and ultimately will be of little value to very few people.
The USCIS Policy Manual was updated with the newly added Chapter 3 (which had been previously reserved) to address the Compelling Circumstances Employment Authorization.
To qualify under this new policy there are several prerequisites. To qualify for a Compelling Circumstance EAD the applicant must first be the beneficiary of an approved I-140. In addition the applicant must be in valid status and hold an E-3, H-1B, H-1B1, O-1, or L-1. Given this requirement the practical application of the Compelling Circumstance EAD becomes extremely limited. For example an individual who already has an H-1B and an approved I-140 is not subject to the six year limitation and can stay on an H-1B while waiting for their priority date. An individual on an O-1 can renew the O-1 indefinitely and would likely not be in a position to need an Compelling Circumstance EAD.
Additionally, the Compelling Circumstance EAD does not provide any lawful status to the holder, it simply authorizes them to remain in the U.S. to work without accruing unlawful status. This means that the beneficiary will not be able to adjust status, because they will have no status to adjust from. It also means that they will not be able to travel as they will have no status upon which to be admitted upon their return to the United States. In order to obtain a green card once their priority date becomes current they will have to do so through Consular Processing.
There may be rare instances where a Compelling Circumstance EAD is necessary and in that event the beneficiary will need to set forth a persuasive argument with supporting evidence that they are deserving of a Compelling Circumstance EAD. USCIS has provided the following examples:
- Serious illness/disability: The principal applicant or their dependent faces a serious illness/disability that substantially changes employment circumstances, or reduces their ability to continue previously approved employment.
- Employer dispute/retaliation: The principal applicant is involved in a dispute regarding their employer’s illegal or abusive conduct, and the employer retaliated against them.
- Substantial harm to the applicant: The principal applicant cannot extend or otherwise maintain status in a timely manner, or obtain another nonimmigrant status, and would suffer some kind of substantial harm as a result (financial or otherwise).
- Significant disruption to the employer: The principal applicant’s departure would cause the employer substantial disruption due to the applicant’s knowledge or experience.
This is not an exhaustive list and USCIS intended that there be flexibility in making a determination of compelling circumstance. “DHS did not establish a bright-line definition because such a definition could limit DHS’s flexibility to recognize the various circumstances that could be considered compelling.”
If the beneficiary qualifies for a Compelling Circumstance EAD, the new policy additionally allows for the dependents of the beneficiary to obtain an EAD as well.
If you feel a Compelling Circumstance EAD is something that may be of benefit to you, please feel free to contact us for more detailed information.