NewsFlash! Draft Revisions to I-765 Reveals Details of I-140 EAD Proposal

A draft version of a revised form I-765, application for employment authorization has been released, and the corresponding instructions appear to reveal the eligibility criteria for the proposed I-140 employment document authorization (EAD) rule. Unfortunately, it appears that the proposed rule will be more restrictive than hoped. Further, some of the unusual requirements indicated in the instructions leave nearly as many questions as answers.

The revised I-765 instructions state that, in order to qualify, one must be the “beneficiary of an approved employment-based immigrant petition facing compelling circumstances.” More specifically, the individual must be in valid H1B, H1B-1, E-3, O-1, or L-1 status. And, the applicant must present “evidence you are facing compelling circumstances while you wait for your immigrant visa to become available.” If the principal beneficiary is issued an EAD under this rule, the individual’s spouse and unmarried dependent children may qualify, as well. The instructions further note that, in order to apply for an EAD renewal under this proposed rule, the priority date on the beneficiary’s I-140 must be within one year of the cutoff date in the visa bulletin.

No details have yet been provided as to what would constitute “compelling circumstances.” Further, the requirement that one must be in valid, work-authorized status and have a priority date that is within one year of the visa bulletin cutoff date in order to renew the EAD is perplexing. If the applicant is required to continue working in an H1B or L-1 position, it is unclear how this will serve to provide foreign national workers with greater job flexibility.

Until the proposed rule is published in the Federal Register, many of the lingering questions and concerns will remain unanswered. As soon as any new information is made available, an update will be posted on MurthyDotCom.

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