Employment Authorization Documents Based on Compelling Circumstances

On June 14, 2023, United States Citizenship and Immigration Services (“USCIS”) announced new policy guidance has been added to its Policy Manual addressing the eligibility criteria for the issuance of employment authorization documents in compelling circumstances. Classified as those circumstances  which are “beyond the usual hardship associated with job loss”,  Volume 10 of the USCIS Policy Manual, details what foreign nationals must show in order to be eligible for an initial Employment Authorization Document (“EAD”) based on compelling circumstances.

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USCIS Policy Update for Employment Authorization of H-4, L, and E Dependent Spouses

Shergill et al, v Mayorkas (21-cv-1296-RSM), a class action lawsuit, was filed by The American Immigration Lawyers Association (“AILA”) and its litigation partners Wasden Banias and Steven Brown, to address the extensive delays at United States Citizenship and Immigration Services (“USCIS”) in processing Employment Authorization Document (EAD) applications for dependent spouses of H-1B and L nonimmigrant visa holders. On November 10, 2021, AILA announced a settlement had been reached with the U.S. Department of Homeland Security (DHS) in the Shergill case, under which USCIS agreed to allow continued work authorization for certain H-4 and L-2 EAD applicants whose applications remained pending with USCIS. USCIS reversed its policy that prevented H-4 spouses “from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications.” USCIS also agreed to implement policy guidance within 120 days to provide work authorization for L-2 spouses without requiring an EAD card.

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AILA: Extensive Delays for Printing of EAD Cards and Green Cards

The American Immigration Lawyers Association (AILA) states that in recent weeks they have received reports from members of delays in the issuance of Employment Authorization Documents (EAD) and Lawful Permanent Resident Cards (i.e., Green Cards) for some employment-based, family-based, and asylum-based immigration applications. Columnist Catherine Rampell in The Washington Post also confirmed the delays noting that US Citizenship & Immigration Services (USCIS) has shut down printing EADs and Green Cards at one facility in Corbin, Kentucky, weeks ago, as well as scaled back printing at a second facility in Lee's Summit, Missouri, all of which have led to these massive delays.

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USCIS: Re-Registration Period Opens for Syrians with Temporary Protected Status

US Citizenship & Immigration Services (USCIS) announced this week that current beneficiaries of Temporary Protected Status (TPS) under Syria’s designation who want to maintain their status through September 30, 2019, must re-register between March 5, and May 4, 2018. The procedures for re-registration, including how to renew employment authorization documentation, have been published in the Federal Register and on the USCIS website. To re-register, all applicants must submit Form I-821, Application for Temporary Protected Status; additionally, applicants may also request (at the same time or later) an Employment Authorization Document (EAD) by submitting a Form I-765, Application for Employment Authorization. Both of these forms are free on USCIS’ website at uscis.gov/tps.

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USCIS: Updated Form I-765 Streamlines Process To Obtain Work Authorization Document and Social Security Number

US Citizenship & Immigration Services (USCIS) and the Social Security Administration (SSA) have a new information-sharing partnership that now allows foreign nationals in certain categories or classifications to apply for work authorization along with a Social Security number using only one form—namely, the updated Form I-765, Application for Employment Authorization.

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USCIS Is Reissuing Receipt Notices to Certain EAD Renewal Applicants

Beginning February 16, 2017, US Citizenship & Immigration Services (USCIS) began reissuing receipt notices (Form I-797) to individuals who applied to renew their Employment Authorization Document (EAD) between July 21, 2016 and January 16, 2017, and whose applications remain pending in the following categories: 

  • (a)(3) Refugee;
  • (a)(5) Asylee;
  • (a)(7) N-8 or N-9;
  • (a)(8) Citizen of Micronesia, Marshall Islands, or Palau;
  • (a)(10) Withholding of deportation or removal granted;
  • (c)(8) Asylum application pending;
  • (c)(9) Pending adjustment of status under section 245 of the Immigration and Nationality Act;
  • (c)(10) Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA;
  • (c)(16) Creation of record (adjustment based on continuous residence since January 1, 1972);
  • (c)(20) Section 210 Legalization (pending Form I-700);
  • (c)(22) Section 245A Legalization (pending Form I-687);
  • (c)(24) LIFE Legalization; and
  • (c)(31) VAWA self-petitioners;

The reissuing of these receipts was necessitated by the change in USCIS regulations on January 17, 2017, when USCIS started automatically extending certain expiring EADs for up to 180 days while renewal applications were pending. The automatic extensions  apply only to certain applicants who properly filed for a renewal EAD before their current EAD expired, whose EAD renewal is under a category that is eligible for an automatic 180-day extension, and when the category on the applicant’s current EAD matches the “Class Requested” listed on the Notice of Action. 

USCIS is reissuing the receipt notices since some of the notices sent out before that date did not contain the applicant’s EAD eligibility category and in order to ensure EAD applicants have proof of their status for I-9 purposes. The reissued receipt notices will contain: 

  • The applicant’s EAD eligibility category;
  • The receipt date, which is the date USCIS received the EAD renewal application and which employers must use to determine whether the automatic EAD extension applies;
  • The notice date, which is the date USCIS reissued the receipt notice; and
  • New information about the 180-day EAD extension.  

To satisfy requirements for Form I-9, Employment Eligibility Verification, EAD applicants may present the reissued receipt notice with their expired EAD to their employer as a List A document.

Additionally, it should be noted that applicants with an EAD based on Temporary Protected Status (TPS) who filed their EAD renewal applications before January 17, 2017, already received a six-month extension through the Federal Register notice that extended their country’s TPS designation. These applicants therefore will not receive a reissued receipt notice. All renewal applicants who filed Form I-765 applications on or after January 17, 2017, including TPS renewal applicants, will receive Form I-797 receipt notices that contain eligibility category information and information about the 180-day EAD extension.

All About Dependents

Dependents come in all shapes and sizes including spouses, children, and step-children but the word itself, “dependent"—what a label! So many negative connotations! Add the word “alien” and a spouse arriving in the US with their husband or wife may feel rightfully disheartened. Of course, calling a young child who is completely reliant on their parent a dependent makes more sense, yet treating both the same under immigration law does not make the most sense. Nonetheless, in this post we’ll examine key issues relating to both spouse and child dependents.

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USCIS Proposes Rule to Improve Employment-Based Nonimmigrant and Immigrant Visa Programs

The Department of Homeland Security (DHS) and US Citizenship & Immigration Services (USCIS) are now seeking public comments on a proposed rule to “modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs.” Coming out of President Obama’s 2014 executive actions, these changes could potentially affect a large number of skilled immigrant workers as well as many applying for an employment authorization document (EAD). Specifically, the new rule also proposes to “better enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).”

The rule, published in the Federal Register as Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, proposes many key changes that could have a significant impact on the careers and lives of certain foreign nationals. Among the highlights, USCIS proposes to:   

  • Discontinue the ninety-day adjudication time limit for the employment authorization document (EAD) application process and instead provide for automatic extensions of timely-filed I-765 applications assuming certain conditions are met;
  • Allow a ten-day grace period now available to H-1B workers at the beginning and end of the authorized stay to other non-immigrant categories including E-1, E-2, E-3, L-1, and TN classifications;
  • Establish a “one-time” grace period (no working allowed) for up to sixty days for certain highly-skilled nonimmigrant workers under E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN status whenever their employment ends to pursue new employment;   
  • Allow US employers to employ and retain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions (i.e., I-140 petitions) by allowing these workers to accept promotions, make position changes with current employers, switch employers, and pursue other employment opportunities;
  • Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval; 
  • Explain when applicants may retain their priority date to use when applying for adjustment of status (AOS) to lawful permanent residence, including when USCIS has revoked the I-140 approval because of the employer's business termination or I-140 withdrawal; 
  • Allow certain highly-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 status to apply for one year of unrestricted employment authorization if they are the beneficiaries of an approved I-140 petition, are unable to adjust status due to visa unavailability, and can provide evidence that compelling circumstances exists which justify issuing an employment authorization document.

These proposed changes wouldn’t take effect until after the comments period ends February 29, 2016, and until after the final rule is published. Individuals should follow the instructions in the notice to submit comments.