I-140 EAD Proposal is Limited and Restrictive

The U.S. Department of Homeland Security (DHS) issued a proposed rule, on December 30, 2015, entitled “Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” Included in the proposed rule is the long-awaited provision for the ability to obtain an employment authorization document (EAD) based on an approved form I-140, employer petition. Unfortunately, eligibility for this immigration benefit under the proposal is highly restrictive and therefore will aid a far narrower group of foreign national workers than had been hoped.

Background on I-140 EAD Rule

The proposed rule includes a discussion that acknowledges the problems created by the lack of employment flexibility in the current immigration system. Accordingly, the I-140 EAD rule would apply to qualifying beneficiaries of approved I-140 petitions who hold valid E-3, H1B, H1B1, O-1, or L-1 status. However, as explained below, the qualification requirements for the I-140 EAD under the proposal, as drafted, would do little, if anything, to help the vast majority of highly skilled immigrant workers. The DHS regards the I-140 EAD option as a “stop-gap measure for retaining employment authorization for a limited period.”

“Compelling Circumstances” Requirement

One factor that will severely reduce eligibility for the I-140 EAD is that, to qualify, the applicant must demonstrate the existence of “compelling circumstances that justify an independent grant of employment authorization.” The proposed rule does not define “compelling circumstances.” However, it does list several circumstances that potentially would qualify, including:

• Serious illness or disability to the worker and/or a dependent family member

• Employer retaliation, such as where a dispute arises with one’s employer who is engaged in illegal activity, followed by retaliation against the employee

• Other substantial harm to the applicant (This includes the inability to maintain status resulting in substantial harm to the applicant or family without continued work authorization. The example provided is someone working in a high-tech, industry-specific position when the employer goes out of business. In that case, if the worker can establish that the same / similar industry does not exist in the individual’s home county, and that the lack of employment would cause substantial hardship, this may be sufficient.)

• Significant disruption to the employer (For example, an H1B worker is conducting important biomedical research for a cap-exempt employer. The funding for the project unexpectedly changes to a cap-subject institution. If the H1B worker who is engaged in this critical research has not been counted against the H1B cap, it may be possible for the foreign national to apply for an EAD as a temporary measure to allow the work to continue.)

Examples Not Considered to be Compelling Circumstances

The proposed rule also lists situations that would not be considered compelling circumstances. These include individuals who are approaching the statutory maximum time period for their nonimmigrant category (e.g. L1B worker who has worked in the U.S. for 5 years) or circumstances that were within the control of the applicant.

Additional Problems and Hurdles with EAD: Loss of Valid Status

The DHS explains that the use of the I-140 EAD provisions would be limited, in part, because foreign nationals have a significant disincentive to use this option, even if compelling circumstances exist. This disincentive is that use of the I-140 EAD would require relinquishment of one’s nonimmigrant status. This, in turn, makes an individual ineligible for a change or extension of status in the United States. It also would generally make her/him ineligible for adjustment of status (form I-485), meaning that the individual typically would be forced to use consular processing instead.

The I-140 EAD proposal does not specifically restrict the individual’s ability to regain a nonimmigrant status, if otherwise qualified to do so. However, procedurally, that step usually would require departure from the United States and issuance of a new visa foil (commonly referred to as a visa stamp) at a U.S consulate, abroad. Further, the rule does not clarify whether the individual would be subject to accruing unlawful status during the time spent in the U.S. using the I-140 EAD. As explained in the MurthyDotCom NewsBrief, Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence (03.Jun.2013), this could lead to still more immigration hurdles.

Conclusion

The Murthy Law Firm is in the process of preparing comments to submit in response to the proposed regulation. It is important that the DHS hears from stakeholders who recognize that, the proposed I-140 EAD rule, which is intended to improve employment flexibility, utterly fails to accomplish this goal. The DHS will accept public comments through February 29, 2016. Subscribe to the free MurthyBulletin to receive future updates and analyses of this proposed rule and other issues of significance related to U.S. immigration law.

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