I-140 EAD Based on Compelling Circumstances

In 2016, rumors began to circulate that the U.S. Department of Homeland Security (DHS) was going to implement a rule that would allow the beneficiary of an approved immigrant petition for alien worker (form I-140) to apply for an employment authorization document (EAD). The immigrant community was abuzz with the prospect of gaining unrestricted work authorization during the long journey toward lawful permanent residency (i.e., becoming a “green card” holder). Unfortunately, the I-140 EAD rule proved to be far less versatile than what had been hoped for, available only in limited circumstances as a stop-gap measure based on “compelling circumstances.” Now, during the COVID-19 pandemic, however, the I-140 EAD rule may have become a viable option to a larger group of foreign nationals.

Basic Requirements for I-140 EAD

To qualify for an I-140 EAD – or a compelling circumstances EAD, as it is referred to as in the final rule – there are several requirements that must be met. First, the applicant must be in the United States in valid H1B, H1B1, E-3, L-1, or O-1 status, including in any applicable grace period, at the time the EAD application is filed. Second, the applicant must be the principal beneficiary of an approved I-140. Third, the I-140 must not be current in the final action chart of the visa bulletin. And finally, the applicant must convince the U.S. Citizenship and Immigration Services (USCIS) that it should exercise its discretion to issue the EAD based on the applicant’s compelling circumstances.

“Compelling Circumstances” Not Defined

The regulations do not define “compelling circumstances,” which will be adjudicated on a case-by-case basis considering the totality of the circumstances. In issuing the final rule, the DHS did provide a list of some circumstances that could be considered compelling, including serious illness or disability to the worker or a dependent family member, employer retaliation, substantial harm to the applicant, and significant disruption to the employer. In light of the COVID-19 outbreak, situations have undoubtedly arisen in many foreign nationals’ lives that may be construed compelling circumstances.

Validity Period and Dependent Family Member Eligibility

If approved, the I-140 EAD is issued with a validity of up to one year. The person may apply to renew in one-year increments, if the priority date still is not current and the applicant continues to face compelling circumstances. Or, if the difference between the applicant’s I-140 priority date and the corresponding final action date is one year or less, the applicant may reapply without the need to show compelling circumstances. Dependent family members are able to apply for employment authorization alongside the principal applicant for the same period.

No Status, or Unlawful Presence, During Employment Authorization Period

As noted, the foreign national will need to relinquish nonimmigrant status to work pursuant to the I-140 EAD. Fortunately, the final rule clarifies that the applicant will remain in a period of authorized stay while the timely filed and non-frivolous application is pending, or, if the EAD is issued, while working based on that EAD. This is important, as it means the applicant will not accrue unlawful presence. The MurthyDotCom NewsBrief, Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence (17.Dec.2018) provides more details on these concepts.

May Need to Travel to Return to Valid Status or File I-485

Given that the person will no longer be in status based on use of an I-140 EAD, in order to return to nonimmigrant status (e.g., H1B), the employer typically would need to file the petition for consular notification. The USCIS then could approve the petition without an I-94, and the individual would need to travel abroad and return with a valid visa “stamp.” Similarly, if the I-140 priority date becomes current, the person would need to either apply for an immigrant visa abroad, or else get into valid H1B or L-1 status before being able to file an application to adjust status (form I-485).

Still, whether the person wishes to return to nonimmigrant status or to adjust status, there may be options without the need to travel. As discussed in the MurthyDotCom NewsBrief, Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S. (01.Feb.2018), the USCIS has the discretion to issue a backdated I-94 based on extraordinary circumstances beyond the control of the applicant or the petitioner. The chaos created by the COVID-19 pandemic certainly has resulted in “extraordinary circumstances” for a great many people.

In employment-based cases, a foreign national who has failed to maintain status generally is ineligible to adjust status. However, the regulations note that this does not apply if the loss of status was “through no fault of his or her own or for technical reasons.” No doubt, there are situations in which it could be argued that the loss of status was not the applicant’s fault, but was a result of the pandemic.

Conclusion

This is not to imply that the USCIS will routinely approve I-140 EAD applications merely because of the ongoing pandemic. Rather, each case will be reviewed individually, and the applicant will need to demonstrate that all eligibility criteria have been met, and that the extraordinary circumstances warrant issuance of an EAD. The Murthy Law Firm has experience assisting foreign nationals with applying for the I-140 EAD based on extraordinary circumstances. Those interested in pursuing this option are encouraged to schedule a consultation with one of our attorneys.

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