AC21 Series: New Work Permit Created to Address ‘Compelling Circumstances’

By Andrew Greenfield June 29, 2017
AC21 Series: New Work Permit Created to Address ‘Compelling Circumstances’

Andrew Greenfield, managing partner of the Washington, D.C., office of global immigration law firm Fragomen.

This is the third in a series of articles reviewing a new immigration regulation that went into effect on Jan. 17 and that implements various aspects of the American Competitiveness in the Twenty-First Century Act (AC21), which Congress passed in 1999. The regulation expands the ways U.S. employers can recruit and sponsor foreign professionals for H-1B visas and U.S. green cards, and recognizes a new type of work authorization available to temporary workers facing "compelling circumstances."

U.S. Citizenship and Immigration Services (USCIS) has created a new category of employment authorization document (EAD), which the agency may grant to foreign nationals who are experiencing long delays in the processing of their green card (permanent residence) cases and who have compelling personal or professional reasons for seeking new employment. This EAD is valid for one year, can be renewed in one-year increments, and is also available to the employee's dependents. Eligible applicants can use the EAD to change jobs while an employer pursues green card sponsorship on their behalf. The EAD also provides U.S. employers an opportunity to recruit and retain key foreign talent that would otherwise lack work authorization.

The Green Card Quota System

Depending on where an employee was born, the type of job a U.S. employer sponsors him or her to fill, and the date an employer initiates the sponsorship process (known as the "priority date"), the wait for a green card can be extraordinarily long.

Every year the U.S. government allocates 140,000 green cards based on sponsorship by a U.S. employer ("employment-based" green cards). If a sponsored employee has a spouse or unmarried children under age 21 who also wish to immigrate, then these dependents may also apply for green cards and are counted toward the 140,000 annual quota. The fact that family members are counted toward the quota greatly diminishes the number of green cards available to sponsored employees in a given year. The law also generally prohibits the government from issuing more than 7 percent of the annual quota to natives of any one country.

In addition to the per-country quota, the law imposes a five-tier preference system that stratifies the annual allocation of green cards and favors foreign nationals with demonstrably high achievement in their fields and multinational executives and managers. The system also gives preference, although to a lesser extent, to those with advanced educational credentials. For natives of certain populous countries with high emigration rates to the United States, like India and China, and for employees classified in lower preference categories, the sponsorship process can be exceptionally long.

Even where USCIS has approved the request by a U.S. employer—known as an I-140 Immigrant Petition for Alien Worker or "immigrant petition"—to classify an employee within the preference system, the employee and his or her eligible dependents may nevertheless wait years before the government permits them to file applications for adjustment of status, which typically represents the final step in the green card process.

Delays imposed by the quota system are often exacerbated by the requirement that the employer and employee intend for the employee to perform the job described in the immigrant petition as of the date the green card is approved, and for a reasonable period of time thereafter. This can have the practical impact of preventing sponsored employees from pursuing career growth through new job opportunities, including new positions with their green card sponsors. It can also inhibit employers from using staff with progressing skills in new roles and deter employers from recruiting foreign employees who are already in the green card process with other employers. USCIS sought to ease these constraints in promulgating the AC21 regulation by crafting a new opportunity for employment authorization in compelling circumstances.

Eligibility for a Compelling Circumstances EAD

To qualify for this new type of EAD, the applicant must:

  • Be physically present in the United States and maintaining valid E-3, H-1B, H-1B1, O-1 or L-1 visa status, including any applicable grace period, on the date the EAD application is filed using Form I-765.
  • Be the principal beneficiary of an approved immigrant petition.
  • Establish, based on data published in the State Department's Visa Bulletin, that he or she cannot be granted adjustment of status or an immigrant visa under the quota system, given his or her country of birth, preference category and priority date.
  • Demonstrate that compelling circumstances exist such that USCIS should use its discretion to issue an independent grant of employment authorization.
  • Not have been convicted of any felony or of two misdemeanors.

Compelling Circumstances

The commentary to the proposed rule notes that "DHS anticipates that a limited number of nonimmigrant workers … will be able to demonstrate compelling circumstances …."  USCIS declined to define "compelling circumstances" in the final rule, citing the agency's desire for flexibility and the broad range of convincing circumstances that may be "outside a worker's control" and, in their totality, warrant a grant of work authorization.
The government received numerous comments to the proposed rule asking USCIS to identify certain circumstances as compelling. In response to these comments, USCIS provides useful feedback in the commentary to the rule, stating that burdens associated with "a long wait," "job loss," "an aging out child," "home ownership," "notable academic qualifications" and "dissatisfaction with a position or salary" do not rise to the level of compelling circumstances on their own, but when combined with other factors may be compelling in their totality.
The final rule's commentary also indicates that foreign nationals whose immigrant petitions have been approved under the law's "national interest waiver" provisions, as well as foreign physicians working in medically underserved areas, "are eligible to apply" for compelling circumstances employment authorization.

The commentaries to the proposed and final rules illustrate four sets of circumstances the agency may find compelling. The first three examples are:

  • Serious illness or disability. The proposed rule describes a scenario where medical exigencies require a foreign national or dependent to move to a different part of the country, which in turn invalidates the pending sponsorship.
  • Employer retaliation. Here the proposed rule seeks to provide a safeguard for employees who are "in dispute" regarding their employer's "illegal or dishonest activity" and who are the victims of retaliation for "a complaint filed" with an agency or court. USCIS clarifies in the final rule that retaliation need not result in termination and might include various kinds of adverse actions taken by an employer including harassment, and that an ongoing dispute with an employer may provide support to a compelling circumstances argument even where retaliation has not occurred.
  • Other substantial harm to applicant. USCIS suggests in the proposed rule that the requisite harm to an employee or family member might occur where the sponsoring employer goes out of business and the employee, who has developed advanced skills in a specialized industry, would be unable to find work in the home country, where the same industry does not materially exist. The commentary to the final rule, however, no longer refers to the employee's inability to find work in the home country, which suggests that the absence of the employee's specialized industry in the home country may alone give rise to compelling circumstances. USCIS then separately and expansively recognizes that uprooting the family and returning to the home country may result in a "series of circumstances" that cause significant hardship and are compelling.

Unlike the first three examples, which focus on hardships to the sponsored employee, the fourth example in the rules' commentaries recognizes that U.S. employers may also suffer compelling commercial hardships when sponsored employees lose employment authorization and must depart the United States indefinitely for the remainder of the green card process.
The commentary to the proposed rule refers to "substantial disruption to a project for which the worker is a critical employee." The commentary to the final rule adds that while project delay alone may not be compelling, when such delays are combined with other factors, such as the cost to train or recruit a replacement for the foreign worker, or harm to an employer's reputation in the marketplace, compelling circumstances may arise.

This fourth example, coupled with USCIS' repeated desire to broaden the variety of circumstances it may find compelling, presents an opportunity for U.S. employers facing the loss of key employees for whom they've invested in green card sponsorship. USCIS depicts two scenarios that might lead to the loss of a foreign worker and prompt a request for an EAD under the new regulation:

  • Corporate reorganizations causing international assignees to lose eligibility for L-1 visa status.
  • Funding changes resulting in the loss of an employer's H-1B cap-exempt status and its ability to extend the stay of H-1B employees.

It is unclear how restrictive USCIS will be in adjudicating these applications, as the option to apply for a compelling circumstances EAD is new and untested. Given the myriad of circumstances that could leave employers and valuable foreign national employees without work permit alternatives in the face of the green card quota system, this new type of EAD promises to offer relief for those negatively impacted by the most challenging and consequential of these circumstances.

Andrew Greenfield is the managing partner of the Washington, D.C., office of global immigration law firm Fragomen.

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