In the current economic climate, layoffs have become a common occurrence, especially in the tech sector where a significant portion of the workforce comprises H-1B visa holders. These skilled immigrants face the challenge of finding a new job within 60 days to avoid having to leave the country.
In this article, we will explore how individuals on H-1B visas can protect themselves and stay in the United States even after being laid off. In one of my YouTube videos I discussed the option of moving to Canada (you can also read about it on my website EB2NIW.info); we will now focus on what USCIS (United States Citizenship and Immigration Services) is doing to address this issue.
Options for individuals without an existing green card application in progress
In a separate article on my website eb2niw.info I talked about what individuals without an I-140 petition filed with USCIS can do. Let’s briefly recap the options:
- Find a new employer within 60 days and transfer your H-1B visa.
- Seek employment in a cap-exempt organization, which involves a slightly different type of H-1B visa.
- Return to school and apply for an F visa.
- Establish your own business and seek sponsorship through it. However, note that this option is complex and carries certain risks.
- Start your EB-1A or EB-2 NIW (National Interest Waiver) petition, which allows you to be independent and not reliant on a company.
Existing Green Card Applications and the EAD Card Option under Compelling Circumstances
Now, let’s focus on individuals who already have a green card application in progress and explore the possibility of obtaining an Employment Authorization Document (EAD) card through compelling circumstances, also referred to as Category (c)(35). USCIS recently issued guidance regarding this option, providing some clarity on the process. However, it is essential to note that the reality may not align with the optimistic tone conveyed by some online videos claiming that the rules have relaxed and the process has become easier. For accurate and official information, I always recommend the official USCIS information on the matter.
Eligibility for Compelling Circumstances EAD work permit
To be eligible for an EAD card under compelling circumstances, you must meet several requirements:
- Your I-140 petition must be approved. This indicates that you have initiated the green card application process.
- You must be the principal beneficiary of the approved I-140, falling under categories such as EB-1, EB-2, or EB-3.
- Your current visa must be valid, including E-3, H-1B, H-1B1, O-1, or L-1.
- You should not have a pending adjustment of status application, meaning your priority date has not yet become current.
- Applicants and dependents will need to provide biometrics before obtaining the card.
- You should not have been convicted of a felony or 2 or more misdemeanors
- Principal applicants must demonstrate compelling circumstances for the EAD
How to demonstrate Compelling Circumstances?
So a key matter is to demonstrate compelling circumstances to USCIS. Below is a list of reasons the agency accepts:
- Serious illness or disability affecting you or a direct dependent.
- Retaliation by your employer due to a dispute with them.
- Substantial harm inflicted upon you. This harm may be financial, for example.
- Significant disruption to your employer.
USCIS provides specific examples and defines hardship in its policy manual. One possible claim is financial hardship resulting from job loss, especially if it causes the loss of health insurance, necessitates the sale of property, or forces the relocation of your family. Below is an example from the USCIS Policy Manual:
Volume 10, Part B, Chapter 3, on hardship and compelling circumstances
From the USCIS Policy Manual
Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss. Job loss may be sufficient to establish financial hardship depending on the individual circumstances. For example, the loss of health insurance may rise to this level for a principal applicant or their dependents facing extended illness or requiring extensive medical treatment.
Applicants should provide an explanation supported by evidence such as financial records and bona fide cost estimates demonstrating the inherent financial hardship facing the applicant if made to depart the United States, coupled with specialty needs of the applicant or family members. Evidence in this example could also include the applicant’s priority date, as well as other factors such as school or higher education enrollment records, mortgage records, long-term lease records, or documentation regarding home country conditions, as applicable. [...]
Likewise, USCIS generally does not consider unemployment or job loss, in and of itself, to be a compelling circumstance unless the principal applicant can show additional circumstances that compound the hardship ordinarily associated with job loss.
As an 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, and has school-aged children and a mortgage, may face 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. Note that not all of these elements (lengthy time in the United States, mortgage, and school-age children) are necessary for a case-by-case finding of compelling circumstances based on substantial harm to the applicant.
Application Process and Timeline
To apply for the EAD card based on compelling circumstances, you need to submit Form I-765 (Application for Employment Authorization) along with supporting evidence. The total cost is approximately $410, plus $85 for the biometric fee. The processing time for the EAD card is currently around six months, according to USCIS’s historic processing times. However, expedited processing may be requested, although it is at the discretion of USCIS to grant the request.
Important Considerations / Warnings
Before pursuing the EAD card option, it is crucial to understand certain limitations and implications:
- An EAD card does not grant immigration status; it is merely a benefit. If your H-1B visa expires, holding the EAD card alone will not allow you to adjust your status.
- If you are waiting for adjustment of status, you would need to contact USCIS and transfer your pending I-140 to the National Visa Center (NVC) for consular processing. This will require traveling abroad for the final step.
- While waiting for the EAD card, international travel is not possible.
- The EAD card is valid for one year, but it can be renewed as long as needed.
Pursuing the Green Card Path
Given the complexities and limitations associated with the EAD card option, it is advisable to consider working towards securing your green card as a long-term solution. Two viable paths for highly skilled H-1B visa holders are the EB-1A (this website’s focus) and EB-2 NIW categories. To handle your EB1A green card application independently, avoiding the need for expensive legal assistance, I recommend checking out my comprehensive online course on EB-1 for Extraordinary Ability.
Losing a job while on an H-1B visa can be a stressful experience, but there are options available to protect your immigration status. While the EAD card based on compelling circumstances may offer a temporary solution, it is important to recognize its limitations and consider pursuing a green card for long-term stability. By taking control of your immigration journey and understanding the available paths, you can secure your future in the United States and minimize reliance on employers and their legal processes.