In its final rule implemented in the Federal Register on January 17, 2017, the US Department of Homeland Security grants employment authorization for an employment-based visa holder for a one year period in the instance that an individual possesses legal status on visas (H1B, E-3, H-IB, H-lBl, 0-1 or L-1) and is the principal beneficiary of an approved immigrant petition which does not have an immediately available visa and where the individual can demonstrate compelling circumstances that justify the issuance of employment authorization. While family members of the principal are also eligible for the authorization and can concurrently apply with the principal, they cannot be granted until the principal is granted.
There are guidelines to avail oneself of the ability to obtain employment authorization based on "compelling circumstances" assuming the individual has an approved I- 140 petition. The Department of Homeland Security has some suggestions as to what might qualify to meet the requirement: serious illness and disabilities, employer related dispute or retaliation, and other substantial harm and significant disruptions to the employer.
“Compelling Circumstances” Requirement
In order to qualify for the I-140 EAD without having to file for adjustment of status, the applicant must demonstrate the existence of “compelling circumstances that justify an independent grant of employment authorization.”
Serious illness or disability to the worker and/or a dependent family member
Employer retaliation, such as where a dispute arises with one’s employer who is engaged in illegal activity, followed by retaliation against the employee
Other substantial harm to the applicant (This includes the inability to maintain status resulting in substantial harm to the applicant or family without continued work authorization. The example provided is someone working in a high-tech, industry-specific position when the employer goes out of business. In that case, if the worker can establish that the same / similar industry does not exist in the individual’s home county, and that the lack of employment would cause substantial hardship, this may be sufficient.)
Significant disruption to the employer (For example, an H1B worker is conducting important biomedical research for a cap-exempt employer. The funding for the project unexpectedly changes to a cap-subject institution. If the H1B worker who is engaged in this critical research has not been counted against the H1B cap, it may be possible for the foreign national to apply for an EAD as a temporary measure to allow the work to continue.)
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