December 4, 2023

Immigration Green Card

Immigration Is Good For You

New ‘compelling circumstances’ option for US visa a relief for many Indians facing job losses

3 min read
With many Indians in the US facing job losses over the past few months and an abrupt end of employment, those on work permit non-immigrant visas, such as H-1B, have been facing tough times. The few options that were available to them were filing for a change of visa status; or finding other employment within the provided 60-day grace period; or filing for adjustment of status (if applicable). However, there was some good news last month when the US Citizenship and Immigration Services (USCIS) issued a new guidance providing another option to many such non-immigrant workers who have lost their jobs.
This temporary employment authorisation will be available to certain non-immigrants, who are the beneficiaries of approved employment-based immigrant visa petitions, and their qualifying spouse and children, and who are caught in the continually expanding backlogs for immigrant visas and face compelling circumstances. This stop-gap measure is intended to address certain particularly difficult situations, including those that previously may have forced individuals, on the path to lawful permanent residence or green cards, to abruptly stop working and leave the United States.
Under this guidance, USCIS may provide employment authorisation to beneficiaries of approved employment-based immigrant visa petitions (I-140). Beneficiaries who face adverse circumstances resulting from termination of employment and loss of non-immigrant status, may qualify for an employment authorisation document (EAD) if they face compelling circumstances beyond the usual hardship associated with job loss. They can now file for a “compelling circumstances” EAD.
For an applicant to be eligible for an employment authorisation document (EAD) based on compelling circumstances, the applicant must meet certain eligibility requirements. “The applicant should be in valid non-immigrant status with an approved I-140; they should not have filed I-485 and the priority date, as indicated by the final action chart, must not be current; neither applicant nor dependents should have been convicted of a felony or two or more misdemeanours; and applicant and their dependents are required to provide biometrics,” says Shilpa Gokare, owner and partner at Gokare Law Firm, a premier business immigration law firm in Alpharetta, Georgia.
What are compelling circumstances?
Compelling circumstances are situations outside an applicant’s control that would affect continuity of employment of the non-immigrant worker such as serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer. “The compelling circumstance EAD is a discretionary relief and is a temporary stop-gap measure to prevent applicants who are on the path to lawful permanent resident status from abruptly having to stop working and leave the US,” Gokare says.
The applicant can provide documents as evidence to show that compelling them to abruptly leave the country would cause harm to them and their dependents. “Such documents may include but are not limited to documents to show that the applicant has lived in the United States for a significant amount of time (such as school or higher education enrolment records, mortgage records, long-term lease); home country conditions; medical documentation evidencing serious illness or disability and employer retaliation evidence,” says Gokare.
An important condition is that while the compelling circumstances EAD is filed and pending, applicants cannot work. However, they are considered to be in authorised stay and as such will not accrue unlawful presence in the US. An applicant on compelling circumstances EAD loses his/her non-immigrant status. Hence, they must subsequently leave the US to apply for any non-immigrant visa or an immigrant visa at a consulate abroad (consular process), when a visa date becomes available based on their approved I-140.
Important landmarks in green card journey
I-140: The I-140 application form requires information about the foreign worker, employer and job description. It is the form to petition for a non-citizen worker in the US to become a permanent resident (green card holder) in the United States. But an approved I-140 petition for employment based green card applications does not instantly result in a green card
I-485: The last step in the US green card application process is filing form I-485 to adjust lawful immigration status for the foreign national
Priority date: This is the date when USCIS receives the applicant’s petition
Final action date: This is when an US immigrant visa number will be available for a foreign national with a current priority date that month. The visa or green card cannot be issued unless the applicant’s priority date is earlier than the final action date listed on the visa bulletin.


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