Expert staff caught within the employment-based backlogs face nice uncertainty in the course of the COVID-19 disaster. They must proceed to work for employers who’ve sponsored them inexperienced playing cards whereas sustaining H-1B standing. As defined in my earlier FAQ relating to changes in working conditions for H-1B workers, the DOL guidelines don’t present a lot flexibility to employers who could also be pressured to chop wages or furlough workers in an effort to protect jobs. If an H-1B employee’s place is terminated, she or he has a 60 day grace interval to go away the US or to alter to a different standing. This FAQ focuses on immigration points dealing with international nationals who’re ready for his or her inexperienced playing cards whereas in H-1B standing, though some may be in L-1 standing. They’re primarily born in India, and on account of the “per nation limits” within the employment-based first, second and third preferences, they’ve confronted disproportionate ready instances (going into many years) when in comparison with these born in different nations. However for his or her nation of start, they’d have been inexperienced card holders, and even US residents, by now, and wouldn’t be dealing with peril throughout COVID-19 with respect to their immigration prospects.
1. My employer can not afford to make use of workers and terminated me yesterday. I’m in H-1B standing and am additionally the beneficiary of an I-140 petition within the employment-based second choice. I used to be born in India and have a January 1, 2013 precedence date. Whereas I’m within the 60 day grace interval, can I request an employment authorization doc (EAD) beneath “compelling circumstances?”
An Obama period regulation entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” was promulgated to offer modest reduction to excessive expert staff born primarily in India and China who had been caught within the crushing backlogs within the employment-based preferences.
One important provision on this regulation offers an employment authorization doc (EAD) to beneficiaries of I-140 petitions in the US on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant standing if they will exhibit compelling circumstances and whose precedence dates are usually not present. Whereas compelling circumstances haven’t been outlined within the rule, DHS has steered illustrative circumstances within the preamble, which incorporates severe sickness and disabilities, employer dispute or retaliation, different substantial hurt and important disruptions to the employer. Relating to what might represent important disruption, DHS has steered lack of funding for grants that will invalidate a cap-exempt H-1B standing or a company restructure that will not render an L-1 visa standing legitimate.
It seems from the dialogue within the preamble to the regulation that compelling circumstances have to be out of the ordinary. The truth that the method could also be taking a very long time doesn’t represent a compelling circumstance. The DHS additionally acknowledged within the preamble that mere unemployment wouldn’t rise as much as the extent of compelling circumstances, however extra must be proven reminiscent of that the unemployment was on account of a severe sickness or employer retaliation. Nonetheless, beneath the “different substantial hurt” dialogue, a beneficiary who loses a job primarily based on the closure of a enterprise the place the beneficiary has been making use of a talent set in excessive expertise for years (reminiscent of synthetic intelligence) and won’t be able to determine that the identical business exists within the house nation would be capable of exhibit compelling circumstances. Apparently, compelling circumstances may additionally embrace circumstances referring to a enterprise startup, and that the beneficiary of an permitted I-140 petition by way of the nationwide curiosity waiver would be capable of exhibit compelling circumstances. Equally, physicians working in medically underserved areas may be capable of exhibit compelling circumstances.
However the assorted examples of compelling circumstances supplied within the preamble to the rule, the plain language at Eight CFR 204.5(p) (iii) merely states:
USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization
Anecdotal proof means that USCIS has been very niggardly in issuing EADs beneath compelling circumstances because the promulgation of the rule within the fading days of Obama’s presidency in January 2017. Unemployment in itself will not be a foundation as acknowledged within the preamble, however one can attempt to argue compelling circumstances within the COVID-19 interval extra forcefully. When making a case for compelling circumstances, it must be argued, that the plain language of the regulation takes priority over the preamble or the federal government’s subjective interpretation of the time period. Till there are formal administrative interpretations, the time period “compelling circumstances” is sort of a clean canvass, which might be coloured by any credible and cheap argument by the applicant. Nonetheless, one can not financial institution on the USCIS issuing an EAD beneath compelling circumstances on account of unemployment even in the course of the COVID-19 interval. One thing extra along with unemployment must be proven in an effort to make a convincing argument for compelling circumstances.
2. How lengthy will I be capable of keep within the US if I’m given a piece authorization beneath “compelling circumstances”, and the way can I nonetheless get a inexperienced card?
The EAD could also be renewed on an annual foundation if such compelling circumstances proceed to be met, even when it’s a totally different kind of compelling circumstance from the preliminary, or if the beneficiary’s precedence date beneath the I-140 petition is inside one 12 months of the official deadline.
How will this work? The job provide supporting the I-140 petition should nonetheless be legitimate. In different phrases, there isn’t a authorized foundation beneath the ultimate rule to port to a different job on a standalone I-140 petition. If the employer withdraws the job provide supporting the I-140 petition, the beneficiary may have one other employer provide a place, and sponsor the beneficiary by way of a brand new labor certification and I-140 petition. The precedence date from the outdated I-140 petition might be recaptured.
Except the beneficiary is sustaining a legitimate nonimmigrant standing (or can search the exemption beneath both INA 245(i) or 245(okay)), she or he won’t be able modify standing in the US and would want to course of the immigrant visa at an abroad US consulate. The beneficiary’s keep beneath a compelling circumstances EAD can be thought of lawful presence, and won’t set off the three or 10 12 months bars upon departure. Alternatively, the beneficiary can go away and return to the US in a nonimmigrant standing reminiscent of an H-1B, after which file for adjustment of standing right here. The rule, sadly, doesn’t present for routine journey by way of advance parole whereas on a compelling circumstances EAD.
3. Will my partner and teenage little one be capable of additionally get a compelling circumstances EAD?
Sure. By-product relations can even apply for the EAD concurrently with the principal beneficiary of the I-140 petition, however they may solely be issued the EAD after the principal member of the family is first granted the EAD. They too should be in nonimmigrant standing on the time of submitting the preliminary utility.
4. I’ve a pending I-485 utility, though the ultimate motion date within the State Division Visa Bulletin just isn’t present this month. My employer can not afford to make use of me and is within the means of shutting down the enterprise.
If the Type I-485 utility has been pending for 180 days or extra, you possibly can train job portability beneath INA 204(j) by taking over a job or being provided a job in a similar or related occupation with one other employer. The underlying labor certification and I-140 will nonetheless stay legitimate upon exercising portability beneath INA 204(j). The applicant might want to submit Form I-485, Supplement J.
Beneath Eight CFR 245.25(b), “[t]he time period “similar occupational classification” means an occupation that resembles in each related respect the occupation for which the underlying employment-based immigrant visa petition was permitted. The time period “related occupational classification” means an occupation that shares important qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was permitted.”
It’s also doable for an adjustment applicant to “port” to self-employment if employment prospects are bleak in the course of the COVID-19 period.
5. My employer can not afford to make use of me in the course of the COVID-19 interval and has terminated my employment in H-1B standing, however nonetheless needs to proceed to sponsor me for the inexperienced card hoping that the financial state of affairs will change for the higher by the point my precedence date turns into present. I’ve not but filed for adjustment of standing.
Because the employment-based inexperienced card sponsorship is predicated on a potential place, your employer can nonetheless proceed with the I-140. When you go away for India inside the 60 day grace period after cessation of employment and haven’t choices to stay in H-1B standing by way of one other employer or change standing, you possibly can finally course of the immigrant visa at a US consulate abroad upon your precedence date turning into present. Given the present wait instances within the employment-based first, second and third preferences for India, it might take a few years, even many years, earlier than you will get again to the US as a everlasting resident. Nonetheless, your employer will nonetheless be capable of file an H-1B petition in your behalf sooner or later to convey you again earlier than you receive the inexperienced card. This H-1B petition won’t be counted towards the H-1B cap as you might have been beforehand counted towards the cap, and you may be entitled to 3 12 months extensions past the 6 12 months H-1B limitation.
6. Since there aren’t any flights to India at the moment, how can I depart the US inside the 60 day grace interval?
You might attempt requesting a change of standing to B-2 customer standing earlier than the tip of the 60 day grace interval by submitting Form I-539, and asking for an extra six months in that standing. Though you’re the beneficiary of the an I-140 immigrant visa petition, which should be disclosed on Type I-539, the truth that you plan to finally apply for everlasting residence shouldn’t battle along with your request for a change of standing to B-2 when you can exhibit your real incapacity to depart the US and that it’s going to take a very long time earlier than you even change into eligible for a inexperienced card. Moreover, you too can argue that your intention is to use for an immigrant visa on the US Consulate earlier than you possibly can come to the US as a everlasting resident.
7. I’m in my sixth 12 months of H-1B standing with an permitted I-140 petition. If the employer who filed the I-140 petition not needs to make use of me now or sooner or later, how can I nonetheless make the most of this I-140 petition and get a inexperienced card by way of one other employer?
If one other employer recordsdata a brand new labor certification and I-140 petition in your behalf, the precedence date of the unique I-140 petition can nonetheless be retained even when the previous employer withdraws the petition. Since you might have already been counted beneath a previous H-1B cap, the brand new employer can file one other H-1B petition in an effort to reenter the US in H-1B standing. You can be eligible for Three 12 months extensions past the six 12 months limitation of the H-1B visa till your precedence date turns into present.
8. Will President Trump’s newest inexperienced card ban impression me or my household?
President Trump’s Proclamation will ban individuals looking for immigrant visas at a US Consulate for 60 days from April 23, 2020. Subsequently, it won’t impression those that are already within the US and looking for everlasting residence by way of adjustment of standing. Even when you depart the US to course of for an immigrant visa at a US Consulate, the ban won’t apply to at least one who was within the US on the efficient date of the Proclamation, which was April 23, 2020. The Proclamation will nonetheless ban spinoff relations who’re processing for immigrant visas at a US consulate even when the principal applicant adjusted standing within the US until they had been within the US on April 23, 2020.