While the long-anticipated I-140 EAD rule has not yet been published, the basic outline of the proposed policy changes have emerged. The proposed new I-765 employment authorization form instructions explains what will be required to be eligible for the new benefit. The form is available for viewing at https://t.co/RuABhh6bLz. The policy is summarized in the form instructions:

Beneficiary of an approved employment-based immigrant petition facing compelling circumstances–(c)(35). File Form I-765 along with documentation that you are in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, that an Immigrant Petition for Alien Worker (Form I-140) was approved on your behalf, and you face compelling circumstances while you wait for your immigrant visa to become available. Please see the USCIS Web site at www.uscis.gov/I-765 for the most current information on where to file this benefit request. If you are requesting renewal of employment authorization under (c)(35), to qualify, the difference between your priority date and the date upon which immigrant visas are authorized for issuance for the principal alien’s preference category and country of chargeability is 1 year or less according to the current Department of State Visa Bulletin.

So applicants will need to demonstrate three things to qualify for an initial EAD under the proposed rule:

  1. Maintaining an E-3, H-1B, H-1B1, O-1 or L-1 status
  2. An I-140 has been approved on the applicant’s behalf
  3. The applicant faces “compelling circumstances” while awaiting an immigrant visa to become available

The evidence that would be submitted seems relatively straightforward. A copy of an I-94 to prove one is in the relevant non-immigrant status. A copy of an I-140 approval notice is also required. USCIS will allow submission of “secondary evidence” which might be necessary if an employer has not or will not provide an employee with a copy of the approval notice. The I-765 instructions indicate that providing two or more affidavits may suffice.

As for what constitutes “compelling circumstances”, the instructions do not define or provide examples.

An important and concerning restriction on the rule relates to extensions. Applicants will only be able to extend if their priority date is within a year of the cut off date in the Visa Bulletin that is in effect at the time the extension application is filed.

The costs for the program will include the I-765 fee (currently $380) plus an $85 biometrics fee.

Spouses and children will be eligible for the benefit. Spouses and unmarried dependent children can file concurrently with the principal applicant.  However, like the H-4 EAD rule, it appears from the I-765 instructions that a principal applicant will need first to be granted the EAD before the spouse or child’s petition will be adjudicated. This could mean waits of up to six months for spouses and children to get work cards.

There are a number of open questions that the actual proposed regulation language will hopefully address:

  1. USCIS has indicated that they have been drafting language that would allow I-140s to survive even if an employer seeks to revoke an I-140 or an employer shuts down. This would have major positive benefits for employees and employers since workers could move in to higher positions within a company without having to re-file a new green card or move to a new employer without the new employer having to file a new petition.  Will that language be in the proposed rule language for the EADs or is it going to be in a separate rule?
  2. What are “compelling circumstances”? Will USCIS provide specific examples? If they don’t we could see widely different applications of the rule depending on the examiner deciding the application. USCIS could broadly
  3. Will advance parole be available to participants in the EAD program and, if so, what will the criteria be?
  4. What will happen to people who have let their H-1Bs lapse and who are ineligible to extend their EADs because their priority dates are not current? Why did USCIS put this restriction in the proposed rule? Will they be able to get back in to H-1B status? Will they have to travel to US consulates abroad to get back in to H-1B status or will USCIS allow employers to process these cases as late-filed change of status petitions?
  5. How long will employment cards be valid? If they are valid for two or three years as opposed one year, that would obviously reduce the risks associated with the strange EAD extension process included in the rule.
  6. Will starting a business be viewed as a compelling circumstance? If so, combined with a future parole for entrepreneur rule, this rule could be very good news.
  7. What is the legal basis for the regulation? While many legal experts have said USCIS has discretion to enact a policy like this, it will be interesting to read USCIS’ analysis and also if they explain why they have placed more restrictions on the program than some within the Administration felt were necessary. That obviously will be important for legal experts commenting on the rule.

We’ll also want to look at the proposed timing. How many days will the comment period be? When will a final rule likely take effect.

Let me know what other questions are raised in the comments section.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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26 Responses to Details Starting to Emerge Regarding I-140 Employment Cards

  1. Anonymous says:

    hi Greg – can you elaborate on this a bit more? “If you are requesting renewal of employment authorization under (c)(35), to qualify, the difference between your priority date and the date upon which immigrant visas are authorized for issuance for the principal alien’s preference category and country of chargeability is 1 year or less according to the current Department of State Visa Bulletin.”

  2. shyam says:

    Thank you for the insight. Merry xmas

  3. Chirag says:

    Hi Greg, any insight if we are getting 140 portability?? means new employer do not need to do PERM and 140 again..

  4. Greg Siskind says:

    Chirag – That was the first of my 7 questions. I think it’s still happening. Just not sure it’s part of this regulation or being done separately.

  5. Guest says:

    Once again.. disappointment… No help to those waiting for years.. no ray of hope.. just say that leave the country instead of coming up with these drama rules!

  6. PriyaJ says:

    One company wants to recruit me as a Full time employee but does not sponsor H1. I want to join the ocmpany too. Is this Compelling CIrcumstance..?

  7. Sam says:

    From the deliberations it appears thus far :

    People with priority date within 1 year of their respective EB category “current date” can look to change jobs (or be covered in case of Lay offs) and site that as an “Compelling Circumstance”

  8. Inthewilderness says:

    “What will happen to people who have let their H-1Bs lapse and who are ineligible to extend their EADs because their priority dates are not current? Why did USCIS put this restriction in the proposed rule? Will they be able to get back in to H-1B status? Will they have to travel to US consulates abroad to get back in to H-1B status or will USCIS allow employers to process these cases as late-filed change of status petitions?”

    I can answer this question. The compelling reason clause is specifically intended to avoid the above situation that you have described. If a person is on valid H1-B status and is voluntarily giving that up to get an EAD to move to a different position, USCIS will not treat that as a compelling situation.

    Even regarding “Starting own business”. With an EAD, the primary applicant on 485 based EAD’s are still supposed to have a primary job same/similar to the underlying I140 in accordance with AC 21. So if you have a I-485 pending for 180 days and then quit your employer to start an unrelated business or even related business with the self employment route, in all probability, the I-485 will be rejected when it comes up for adjudication. So the question of running your own business as the primary job with an EAD does not arise except in 1% exception circumstances (even that has a very low probability of approval).

    So these can hardly be classified as compelling circumstances.

    • The_One says:

      @Inthewilderness- So, if the person wants to move to a higher position and if that position is not H1B sponsored[Lets say from core technical to team manager]. The person still cannot move. What exactly changed with this rule? How did this provide more job flexibility and how does this ensure natural career progression ability.

      • Inthewilderness says:

        Sadly, that is hardly a compelling reason. And you are right, nothing much has changed with this rule. In fact being 1 year of PD to apply for EAD extension is also not very useful since with the new I-485 system, in most cases applicable dates are within 1 year of the actionable dates of I-485. So such people are naturally eligible to go straight for I-485. They have no purpose in applying for I-140 based EAD.

  9. alpha0 says:

    So if you jump the fence, you will/can get 3 year EAD but if you come here legally, pay your taxes, wait in queue and even have immigration petition approved, you still need to give justification why you need EAD!! What are they smoking when they propose such rules?

    • Inthewilderness says:

      Sadly this is the truth. Hispanics are big voting bloc in this country and to please them, this govt and many previous govt have always preferred to favor illegal immigrants over the legal immigrants.

  10. Kris says:

    What is the situation of spouses of principal applicant who applied for I-485 and principal applicant is on I-485 based EAD/AP and let the H1B lapse . Spouse is in independent status like F1 or H1B ..

    Spouse couldn’t file I-485 along with the principal applicant because marriage happened after principal filed I-485 or whatever the reason may be, and priority date never became current for spouse to file.

    Do these class of people have any relief ?

  11. bhaskar says:

    Greg you responded to me on twitter last month when the draft was not available.

    Do you know what would happen to L1 group.. I find it interesting to see the reference of L1 on the rule..
    1. As is stands today L1 folks cannot extend their visa after their max-out date.
    2. L1 folks cannot initiate a visa transfer to a different company today and they have to stay with the parent company.

    Any insights on how this rule could help or any possibilities as to what the outcome could be..

  12. hiperm says:

    Mr Siskind,

    As per the rule, If I have an old I-140(previous employer) , can I apply EAD directly with my current active H1B status? Please note I don’t have I-140 with my current employer.

    Then what is the difference between I-485 and I-140 EAD? How do I get the green card via I-140 EAD? Do I need to file I-485 via current employer when my date is current using my previous employer’s I-140?

  13. Kris says:

    Hello Greg ,

    What is the situation of spouses of principal applicant who applied for I-485 and principal applicant is on I-485 based EAD/AP and let the H1B lapse . Spouse is in independent status like F1 or H1B ..

    Spouse couldn’t file I-485 along with the principal applicant because marriage happened after principal filed I-485 or whatever the reason may be, and priority date never became current for spouse to file.

    Do these class of people have any relief ?

  14. […] Greg Siskind, Dec. 25, 2015 – "While the long-anticipated I-140 EAD rule has not yet been published, the basic outline of the proposed policy changes have emerged. The proposed new I-765 employment authorization form instructions explains what will be required to be eligible for the new benefit.  … There are a number of open questions that the actual proposed regulation language will hopefully address…" […]

  15. Anonymous says:

    Greg,

    Any ideas about : USCIS Proposes to Require Employers and Foreign Workers to Attest Existence of PERM Certified Jobs in Filing EB-485 or in Portability.

    Click on the following link.

    http://www.immigration-law.com/XXIV.html

    • AnonK says:

      To Anonymous,
      They expanded the H2 and agriculture worker related visas. and putting a gag on hi–tech immigrants. Message is loud and clear, the US of A doesnt want anymore H1 lowlifes like us. They want more people in their agricultural fields ( like the 1800s 🙂 ) for the foreseeable future.

      thank you and have a nice day.

      • Anonymous says:

        Anon K, Need more clarification on your comments. Are they going to implement rules for H2 applicant who have approved I-140? Thanks.

  16. Anonymous says:

    Do they have a plan to provide an EAD card to illegal applicant of them neighbor country?

  17. Ram says:

    Most of the proposed I-140 ead rule do not help any EB-2 or EB-3 immigrants. Not many people will be eligible based on the compelling circumstances..

  18. Sam says:

    As per today’s published policy outlines, mentioned in the link :

    http://www.murthy.com/2015/12/30/ne…prove-job-flexibility-grace-periods-and-more/

    there hardly seems any new benefit for people currently on I 140.

    1. 1-140 : seems to be fo rarest of rare and making “consular processing” compulsory would further discourage Employees.

    2. If an employee changes Employers he will again have to apply for PERM. Not very sure, if he can preserve his previous priority date and if there is transparency on this topic.

    Those currently with EAD (except H4 EAD) gets the benefit of auto renewal. This seems to be only silverlining of this entire deliberations.

  19. bhaskar says:

    The rule is out: http://www.regulations.gov/#!documentDetail;D=USCIS-2015-0008-0001

    Can you help me decode the state for L1 visa holders with this rule?

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