USCIS Relaxes Rules for Employment Authorization Based on ‘Compelling Circumstances’
New Biden administration policy flouts Congress’s express limits on work visas
By Elizabeth Jacobs on June 19, 2023
A new Biden administration policy on temporary work visas is an affront to immigration limits enacted by Congress.
U.S. Citizenship and Immigration Services (USCIS) issued a policy guidance last week explaining the eligibility criteria for employment authorization documents (EADs, i.e.. work permits) based on “compelling circumstances.” This guidance builds off of an existing regulatory provision, found at 8 C.F.R. § 204.5(p), that permits the issuance of “compelling circumstance” EADs to aliens who are currently in an employment-based nonimmigrant status (on E–3, H–1B, H–1B1, O–1, or L–1 visas) and who have an approved Form I-140, Immigrant Petition for Alien Workers (meaning that they may one day be eligible to receive a green card).
USCIS described the compelling circumstances-based EAD as a “temporary stopgap measure intended to address particularly difficult situations, including those that may have otherwise forced individuals on the path to lawful permanent residence to abruptly stop working and leaving the United States.” The agency appears to have issued this guidance to expand options to recently laid off foreign workers that depend on employment in the United States in order to retain a lawful immigration status -- most of these have H-1B visas. Most troublingly, the document provides an expansive, non-exhaustive list of circumstances that would permit aliens who are soon to fall out of status to nevertheless continue to live and work in the United States. (Most of these have H-1B visas.)
The policy guidance explained that “compelling circumstances” is generally meant to cover situations “in which the nonimmigrant is no longer able to continue employment with their employer and faces serious harm … beyond that which is normally associated with job loss.” USCIS includes situations such as serious illness or disability that adversely affects the principal applicant’s ability to continue their previously approved employment; an employer dispute that affects the alien’s ability to continue the previously approved employment; or significant disruption to the employer because of an alien’s inability to timely extend or change status to continue employment with their employer, as potentially valid circumstances that could warrant issuance or renewal of an EAD.
https://cis.org/Jacobs/USCIS-Relaxes-Rules-Employment-Authorization-Based-Compelling-Circumstances
