On June 14, 2023, US Citizenship and Immigration Services (USCIS) issued updated policy guidance to address eligibility criteria and standards for employment authorization involving compelling circumstances. Such policy guidance is welcome news for the small contingent of individuals eligible for “compelling circumstances” (C35) employment authorization documents (EADs), as previously strict standards for C35 EADs translated to limited use of the category. Yet, the pool of foreign workers experiencing job loss who may benefit from a C35 EAD remains very small. While the guidance from USCIS is welcome and overdue, it is merely a bandage for a much more complicated problem caused by significant backlogs, extreme processing delays, high demand, and very few nonimmigrant options for skilled workers.
As of January 2017, the Department of Homeland Security (DHS) amended regulations related to certain employment-based nonimmigrant and immigrant visa programs. The amendments provided various benefits to participants in employment-based immigration programs. The stated aim of the new rules was to “improv[e] the ability of US employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.” Included among these changes was a process through which individuals subject to delays in immigrant visa availability and facing “compelling circumstances” may apply for temporary employment authorization.
The eligibility criteria for a C35 EAD includes the following:
- The applicant is in the United States (US) in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including any applicable grace period, on the date the application for employment authorization is filed;
- The applicant is the principal beneficiary of an approved I-140;
- There is no visa number available to the foreign worker based on priority date, preference category, and country of chargeability according to the Final Action Date in effect from the Department of State (DOS) Visa Bulletin on the date the EAD application is filed;
- The applicant has not been convicted of a felony or two or more misdemeanors; and
- Compelling circumstances exist that would justify the use of agency discretion to grant the work authorization.
USCIS states that the C35 EAD is a stopgap measure, “intended to address certain particularly difficult situations, including those that previously may have forced individuals on the path of permanent residence to abruptly stop working and leave the United States.” As of the date of this article, there are backlogs in the second and third-preference employment-based categories for all countries as well as backlogs in the first-preference category for China and India. USCIS is currently processing immigrant visa applications and is accepting and adjudicating applications for adjustment of status for Indian nationals in the third preference category with priority dates of January 1, 2009, or earlier. Therefore, it is entirely plausible that a foreign worker could be physically present in the US for many years, in some cases more than a decade, before being eligible for a green card. The C35 EAD was intended to address the reality that foreign workers deserve some protection from job loss.
Under previous USCIS guidance, however, what would constitute a “compelling circumstance” warranting the issuance of a C35 EAD remained unclear. As suggested in the preamble to the published Final Rule, examples of compelling circumstances might include serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. Mere job loss does not reach the level of “compelling,” so these EADs have seldom been issued.
As outlined in its June 2023 policy announcement, the new USCIS policy is intended to accomplish the following:
- Explain the eligibility criteria for initial and renewal applications for an EAD based on compelling circumstances for both the principal applicant and dependents.
- Provide a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer. These situations include:
- Serious Illness and Disability. Examples might include the need to move to a different geographical area to receive medical treatment or disruption in treatment or quality of care if the individual was forced to depart the US. An explanation supported by evidence, such as medical records, should be provided by applicants claiming exceptional circumstances on this ground.
- Employer Dispute or Retaliation. Examples of disputes are whistleblower actions or litigation. Appropriate evidence should also be included with an application claiming exceptional circumstances based on a dispute or allegation of employer retaliation.
- Substantial Harm to the Applicant. Substantial harm may be financial or may be due to conditions in the applicant’s home country; however, the financial hardship must exceed that which would normally be associated with job loss. For instance, the loss of health insurance may cause financial hardship, if the applicant is facing extended illness or requiring extensive medical treatment. Financial records and cost estimates should be provided to support the claim of financial hardship.
- Disruption to the Employer. If an individual is unexpectedly unable to timely extend or change status to continue employment with the employer and has no other basis to continue that employment, this circumstance may cause substantial disruption to the employer’s business warranting issuance of a C35 EAD. Note that reaching a statutory cap or limitation on the period of authorized stay does not in and of itself constitute compelling circumstances absent compounding factors. Evidence should demonstrate that, “due to the principal applicant’s knowledge or experience, their loss would negatively impact projects and result in significant monetary loss or other disruption to the employer.”
- Provide guidance on evidence an applicant could submit to demonstrate one of these compelling circumstances (see examples above).
- Provide guidance on what adjudication of compelling circumstances-based EADs entails, including the maximum validity periods USCIS may authorize. Note that USCIS may issue C35 EADs for one-year validity periods. Renewals may be issued in one-year increments if: (1) compelling circumstances continue to exist and (2) the difference between the applicant’s priority date and the Final Action Date for the applicant’s preference category and country of chargeability is one year or less according to the DOS Visa Bulletin in effect on the date the applicant filed the renewal application.
- Explain that an individual with a valid compelling circumstances-based EAD is considered to be in a period of authorized stay; and therefore, will not accrue unlawful presence. Although the individual may become ineligible for adjustment of status under INA 245A, which requires that the applicant be maintaining lawful status at the time of filing, such an individual may subsequently leave the US to apply for an immigrant or nonimmigrant visa at a consular post abroad, without triggering the unlawful presence grounds of inadmissibility (as long as they have not otherwise accrued periods of unlawful presence).
Despite this updated guidance, the C35 EAD remains a limited option for most workers who have either lost their jobs or are close to reaching a statutory limitation on stay (i.e., 6-year max for H-1B status, 5-year maximum for L-1B status, or a 7-year max for L-1A status). Even though the USCIS policy provides additional guidance on what situations might constitute compelling circumstances, the EAD validity period is only one year and renewable under limited circumstances. Further, the foreign national must still be the beneficiary of an approved I-140. Since Department of Labor (DOL) delays have significantly increased the time it takes to reach the point in the permanent residency process when an individual may have an I-140 approval; these delays are a major reason that many foreign workers are forced to return to their home countries after reaching a maximum statutory period of stay.
Those who have been in the US for longer may have more robust cases for C35 EADs, because there will often be a greater reliance on the worker’s skills or expertise by the employer, often due to training or investment in the foreign worker. These individuals are also more likely to have children born in the US or attending US schools. In addition, they are more likely to hold mortgages and may also have established medical care. These are all factors that might, in addition to job loss, meet the new standard of what constitutes a compelling circumstance.
As noted above, the C35 EAD is merely a temporary stopgap measure, as USCIS explicitly states. While the foreign worker using a C35 EAD is considered to be lawfully present in the US, the C35 EAD does not confer any lawful status. Therefore, the worker may be unable to adjust status through the employment-based process (which, subject to limited exceptions, requireds the individual to be maintaining status). They may ultimately consular process, however, as the C35 EAD would protect the worker from accruing periods of unlawful presence that may trigger a bar to readmission to the US. Still, consular immigrant visa appointment availability and slow processing times may result in a work authorization gap.
While the C35 EAD should be considered for those experiencing job loss, it remains a very limited option and underscores the need for an overhaul of the U.S. legal immigration system. For many years, there has been a call to reform U.S. immigration law, but no uniform consensus as to what an overhaul of the system might look like. The urgency for meaningful change has become even more apparent in recent years due to unprecedented agency backlogs, excessively long wait times for permanent resident cards (especially for individuals from India and China), a dishearteningly low H-1B selection rate of just 14.6%, and disturbing allegations of systemic abuse during this year’s H-1B registration process. These issues indicate that US labor market realities must be considered in designing a new economic and humanitarian-driven immigration law solution.
About the Author:
Heather Frayre is a Member in Dickinson Wright’s El Paso office, where she assists clients in navigating immigration matters tied to the recruitment, hire, transfer, and retention of foreign workers. She counsels corporate and individual clients on a full range of immigration matters, including non-immigrant visas, permanent residency, and citizenship, as well as issues tied to worksite compliance. She can be reached at 915-541-9370 or firstname.lastname@example.org.
 Note that C36 EADs exist for children and spouses of foreign workers who would qualify under the C35 criteria.