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Immigration

Laid off H1B visa holders: USCIS provides guidance on work permits based on compelling circumstances

BY JYOTHSNA HEGDE

A policy alert effective immediately was issued by USCIS regarding ‘Employment Authorization Documents Based on Compelling Circumstances’ on June 14, 2023.

The Foundation for India and Indian Diaspora Studies (FIIDS), which has been advocating for laid-off H1B visa holders for over six months since late last year spoke to NRI Pulse about this positive development.

“FIIDS has campaigned for over six months to provide relief to laid-off H1B holders since late last year. Through collaboration with partner organizations and advocacy efforts with elected officials, we have made progress. The USCIS has played a crucial role by offering clarifications and coming up with outlines for relief within its processes. This has been instrumental in addressing the concerns of affected individuals,” Khanderao Kand, President, FIIDS said. “I am happy to see that our awareness campaign is taken seriously. We thank the USCIS and its director Ms. Jaddaou for being accommodative in finding such relief in the existing framework,” Kand added.

When nonimmigrant workers are laid off, some wrongly assume that they have no option but to leave the country within 60 days.

When a nonimmigrant worker’s employment is terminated, either voluntarily or involuntarily, they typically may take one of the following actions, if eligible, to remain in a period of authorized stay in the United States:

  • File an application for a change of nonimmigrant status;
  • File an application for adjustment of status;
  • File an application for a “compelling circumstances” employment authorization document; or
  • Be the beneficiary of a nonfrivolous petition to change employer.

If one of these actions occurs within the up to 60-day grace period, the nonimmigrant’s period of authorized stay in the United States can exceed 60 days, even if they lose their previous nonimmigrant status. If the worker takes no action within the grace period, they and their dependents may then need to depart the United States within 60 days, or when their authorized validity period ends, whichever is shorter.

On June 14, 2023, USCIS issued policy guidance in the USCIS Policy Manual to address eligibility criteria and standards for applications for Employment Authorization involving Compelling Circumstances.

USCIS may provide employment authorization to beneficiaries of approved employment-based

immigrant visa petitions who face delays due to backlogs in immigrant visa availability. Beneficiaries who face adverse circumstances resulting from termination from employment and loss of nonimmigrant status, may qualify for an Employment Authorization Document (EAD) if they face compelling circumstances beyond the usual hardship associated with job loss.

This compelling circumstances-based EAD is a temporary stopgap measure intended to address particularly difficult situations, including those that may have otherwise forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States. USCIS is now issuing guidance on EADs based on compelling circumstances to explain eligibility criteria and the adjudicatory process for reviewing and issuing such EADs.

This guidance, contained in Volume 10 of the Policy Manual, is effective immediately and applies prospectively to applications filed on or after June 14, 2023. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.

Policy Highlights:

• Explains the eligibility criteria for initial and renewal applications for an EAD based on compelling circumstances for both the principal applicant and dependents.

• Provides 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.

• Provides guidance on evidence an applicant could submit to demonstrate one of these compelling circumstances; for example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area, who has lived in the United States for a considerable period of time, could submit such evidence as school or higher education enrollment records, mortgage records, or long-term lease records, to support a potential finding of compelling circumstances if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull the children out of school, and relocate to their home country.

• Provides guidance on what adjudication of compelling circumstances-based EADs entails, including the maximum validity periods USCIS may authorize.

• Explains 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 they may become ineligible for adjustment of status under INA 245(a), such an individual may subsequently leave the United States 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).

Earlier in the year, the FIIDS had written to USCIS regarding the impact of tech layoffs seeking an increase in the grace period for H1B visa holders. In response, USCIS acknowledged the impact of layoffs on non-immigrant workers, saying, “We are aware of the issue of involuntary terminations, especially in the technology sector.”

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