USCIS signals expansion of employment authorization to certain nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) has signaled that it intends to create a new basis for employment eligibility for certain nonimmigrant workers and their dependents.

The agency has released a proposed revision of Form I-765, Application for Employment Authorization, which adds a new category of eligibility for nonimmigrant employees who have an approved employment-based immigrant petition and face “compelling circumstances.”

The instructions to the proposed form direct such applicants to file Form I-765 along with documents proving that:

• They are in the U.S. in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status.
• An Immigrant Petition for Alien Worker (Form I-140) was approved on their behalf.
• They face compelling circumstances while they wait for their immigrant visa to become available.

The instructions do not define “compelling circumstances,” but state that applicants may ask USCIS to consider secondary evidence if they do not have the listed items. Additionally, spouses and unmarried dependent children of beneficiaries of approved immigrant petitions would be eligible to apply for an Employment Authorization Document.

The instructions do not specify the validity period of the EAD for this category, but they indicate that in order to qualify for an extension of employment authorization, the applicant’s priority date must be within one year of the cutoff date for visa issuance published in the most current Department of State Visa Bulletin.

The changes may appear in a proposed regulation, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” that USCIS is expected to publish soon. The Office of Management and Budget concluded its review of the rule on Dec. 22. The summary of the proposal states that the regulation aims to “provide stability and job flexibility for the beneficiaries of approved employment-based immigrant visa petitions while they wait to become lawful permanent residents,” and to implement the American Competitiveness in the Twenty-First Century Act of 2000 and the American Competitiveness and Workforce Improvement Act of 1998.

The proposed changes to the form and its instructions can be viewed here.

BAL Analysis: These proposed alterations to the Form I-765 provide indications of what the highly anticipated regulation will contain, but the text of the proposed regulation has not yet been published in the Federal Register. BAL is monitoring the progress of the regulation and will provide updates and analysis of proposed changes.

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