Amidst recent layoffs across major tech firms, Indian immigrants living in the United States have received a glimmer of hope. The U.S. Citizenship and Immigration Services (USCIS) has introduced a new policy, PA-2023-18, which unveils a comprehensive blueprint providing guidance on Employment Authorisation Documents (EADs) to address challenging circumstances.
The newly implemented policy framework establishes a legal pathway for individuals who are beneficiaries of approved employment-based immigrant visa petitions but face delays due to visa availability backlogs.
This reform is expected to be a crucial lifeline for Indian workers residing in the United States, aiming to mitigate the disruptive consequences of unexpected job loss or other unfavourable situations that could jeopardise their immigration status.
The policy’s significance is particularly evident for the Indian community in the United States, as many individuals find themselves caught in the extensive green card backlog for EB-2/3 visas, lasting over a century. Losing a job under these circumstances would traditionally leave individuals with a mere 60-day window to secure alternative employment, risking potential departure from the country despite having resided in the U.S. for over a decade and establishing a life there.
The recent policy shift holds particular benefits for Indian professionals employed in the United States under H-1B or L-1 non-immigrant visas. According to the updated provisions outlined in the press statement released by USCIS, these individuals now have the opportunity to apply for Employment Authorisation Documents (EADs) under compelling circumstances. Such circumstances include serious illness or disability, employer disputes or retaliation, significant harm to the applicant, or substantial disruption to the employer.
The policy serves as a safety net for Indian immigrants who often face uncertainty surrounding sudden job loss, providing them with financial stability as they navigate towards more secure employment opportunities.
Additionally, the policy outlines specific categories of evidence that applicants can submit to demonstrate compelling circumstances. These evidentiary documents may include enrolment records from educational institutions or mortgage documents that substantiate potential hardships arising from forced property sales, disruptions to children’s education, or relocation to India.
The recent directive issued by USCIS demonstrates a practical approach to address the challenges faced by immigrant workers, particularly those from India who constitute a significant portion of the U.S. IT workforce.
The policy emphasises that individuals with a valid Employment Authorisation Document (EAD) based on compelling circumstances will not accumulate unlawful presence, safeguarding them against sudden disruptions in their path to obtaining permanent residency.
Moreover, this policy initiative enhances the sense of security for the families of these professionals. Dependants of the affected individuals can also apply for EADs based on compelling circumstances, providing an additional layer of reassurance within the complex immigration landscape.
As per the policy details, to be eligible for an initial Employment Authorisation Document (EAD) based on compelling circumstances, applicants must fulfil the following eligibility requirements:
1. The principal applicant must be the primary beneficiary of an approved Form I-140, which is the Immigrant Petition for Alien Workers, in the first, second, or third employment-based preference category.
2. The principal applicant must be in valid non-immigrant status, such as E-3, H-1B, H-1B1, O-1, or L-1, or be within an authorised grace period when submitting the Form I-765, which is the Application for Employment Authorisation.
3. The principal applicant must not have filed an adjustment of status application.
4. The availability of an immigrant visa based on the applicant’s priority date must not exist as per the relevant Final Action Date mentioned in the U.S. Department of State’s Visa Bulletin at the time of filing Form I-765.
5. Both the applicant and their dependants must provide the required biometrics.
6. The applicant and their dependants must not have been convicted of a felony or two or more misdemeanours.
7. USCIS will exercise discretion to determine whether the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorisation.