New Rules Allow Work Permits ( EADs) for Certain Nonimmigrants in "Compelling Circumstances"

On November 18, 2016, the Department of Homeland Security published new regulations, which cover a number of employment-based immigration areas. The regulations, with the heading, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” are effective January 17, 2017.

In a somewhat good news-bad news fashion, a new rule allows for workers in valid E-3, H-1B, H-1B1, O-1, or L-1 status and their spouses and children, all of whom are seeking green cards, to apply for employment authorization documents (EADs) while they wait. (The family’s EADs are dependent upon the nonimmigrant and can be granted or renewed only if the principal worker’s EAD is granted or renewed.)

The basic requirements are that the applicant must:

  • have valid nonimmigrant status (most importantly, be complying with the terms of the underlying visa)
  • be the beneficiary of an approved immigrant petition under the first, second, or third employment-based category (EB-1, EB-2, or EB-3)
  • be waiting for a priority date to come current, and
  • demonstrate “compelling circumstances.”

While the first three items are straightforward, USCIS deliberately left the “compelling circumstances” criteria vague and offered only the following as examples of what may qualify:

  • serious illnesses and disabilities
  • employer dispute or retaliation
  • substantial harm to the employee, and
  • significant disruption to the employer.

Each application will be viewed on a case-by-case basis to determine whether the circumstances indeed are “compelling” enough to grant the EAD.

The bad news is that once the worker uses the EAD, the nonimmigrant status, such as H-1B, is lost. Nonetheless, although there is no underlying status, the person will not be considered “unlawfully present” for purposes of the three- and ten-year bars.

Further, the person is not eligible to adjust status, in other words, apply for a green card while remaining in the United States. To get back into a nonimmigrant status, the employer would need to file a petition, and the worker would need to travel abroad, obtain a visa at the U.S. consulate, and then return. The spouse and children are in the same situation.

The EAD is valid for one year. In some circumstances, it may be possible to renew the EADs for the principal worker and family members in one-year increments. Finally, the last item in the regulation states that the principal worker is not eligible for this “compelling circumstances” EAD if he or she has any felony conviction or two or more misdemeanor convictions.