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.

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