USCIS Proposes to Narrow Discretionary Employment Authorization

 

Introduction

On June 5, 2026, the U.S. Department of Homeland Security (DHS) published a significant proposed rule titled "Clarification of Discretionary Employment Authorization for Certain Aliens" (DHS Docket No. USCIS-2026-0067, RIN 1615-AC98). The proposal represents one of the most consequential changes to employment authorization (EAD) policy in recent years, as it seeks to substantially limit USCIS's authority to grant discretionary work authorization to many categories of noncitizens.

According to DHS, the proposal is intended to align employment authorization regulations more closely with the Immigration and Nationality Act (INA) by limiting discretionary employment authorization to categories that Congress has expressly authorized or clearly contemplated. If finalized as proposed, the rule would eliminate or significantly restrict eligibility for employment authorization for several groups of noncitizens who currently may apply for Employment Authorization Documents (EADs) under existing regulations.

Major Proposed Changes and Affected Individuals

The proposed rule argues that existing regulations have expanded discretionary employment authorization beyond what Congress intended under the INA. DHS therefore proposes to revise 8 C.F.R. § 274a.12 to narrow the categories of individuals eligible for discretionary employment authorization.

In practical terms, DHS proposes to preserve employment authorization where the INA explicitly authorizes it, while removing or limiting eligibility for categories that exist primarily through agency regulation rather than express statutory authorization.

Individuals Who May Be Affected

The proposal specifically covers three Employment Authorization Document (EAD) categories:

1. Parolees — Category (c)(11): Individuals paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit. This includes groups of nationals who arrived through specific parole programs.
2. Deferred Action Recipients — Category (c)(14): Individuals who have been granted deferred action (a temporary hold on deportation) by DHS.
3. Orders of Supervision (OSUP) — Category (c)(18): Individuals who have received a final order of removal but are temporarily released from custody under an order of supervision because removal is impracticable (often because their home country refuses to issue travel documents or accept them).

Exemptions

It is important to note that DHS has explicitly stated this proposed rule does not apply to:

• Deferred Action for Childhood Arrivals (DACA) recipients (category c33)
• T visa applicants (victims of human trafficking)
• Individuals granted deferral of removal under the Convention Against Torture (CAT)

Proposed Requirements for Covered Categories

For applicants falling under the (c)(11), (c)(14), and (c)(18) categories, the proposal introduces significant restrictions to receiving and renewing an EAD:

• Economic Necessity: Applicants would generally have to provide financial data proving they have a financial need to work.
• Criminal History Bar: Discretionary EADs would generally be denied to anyone with a criminal history—including those arrested, charged, or convicted of criminal acts, or found affiliated with a gang or terrorist organization.
• Mandatory Biometrics: All discretionary EAD applicants would be required to submit fingerprints and biometric data for an FBI background check.
• E-Verify Mandate: To qualify or renew, the applicant must demonstrate they are employed (or will be employed) by a business enrolled in the federal E-Verify system.
• One-Year Validity: EADs issued under these categories would be restricted to a maximum validity period of one year.

The proposal reviews numerous regulatory provisions under 8 C.F.R. § 274a.12 and proposes eliminating or revising additional discretionary employment authorization categories that DHS believes exceed its statutory authority. 

Current Status and Effective Date

It is important to emphasize that this is only a proposed rule. DHS published the Notice of Proposed Rulemaking (NPRM) on June 5, 2026.  The proposal is undergoing the federal rulemaking process.  Members of the public, employers, attorneys, advocacy organizations, and other stakeholders have had the opportunity to submit public comments through Regulations.gov.  DHS must review the submitted comments before deciding whether to publish a Final Rule.  DHS may modify, narrow, or withdraw portions of the proposal after considering public feedback.

Recommendations for Affected Individuals

Although no immediate action is required solely because the proposal has been published, affected individuals should consider taking proactive steps.

1. Do Not Assume Current Rules Will Continue

Individuals relying on discretionary employment authorization should monitor developments closely. Regulatory proposals can change during the rulemaking process, but they may also become final with relatively short implementation periods.

2. Maintain Underlying Immigration Status Whenever Possible

Where feasible, maintaining a valid nonimmigrant status that independently authorizes employment may provide additional protection if discretionary EAD eligibility is narrowed in the future.

3. File Eligible Applications Promptly

Individuals who are currently eligible for employment authorization under existing regulations should consult with immigration counsel regarding the timing of EAD applications or renewals while current rules remain in effect.

4. Monitor Official USCIS Announcements

Only a Final Rule published after completion of the notice-and-comment process can change the current regulations. Until then, existing eligibility requirements remain unchanged.

5. Seek Individual Legal Advice

Because the proposal affects different immigration categories in different ways, individuals should consult an experienced immigration attorney before making employment or immigration decisions based on the proposed rule.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS to Reduce EAD Validity Periods to 18 months or Less

 USCIS announced today a reduction in the validity periods of various Employment Authorization Documents (EADs) as follows:

The maximum validity period for initial and renewal EADs for the following categories will be changed from 5 years back to 18 months: 

• Aliens admitted as refugees;
• Aliens granted asylum;
• Aliens granted withholding of deportation or removal;
• Aliens with pending applications for asylum or withholding of removal;
• Aliens with pending applications for adjustment of status under INA 245; and
• Aliens with pending applications for suspension of deportation, cancellation of removal, or relief under the Nicaraguan Adjustment and Central American Relief Act.

This change affects all EAD applications that are pending or filed on or after Dec. 5, 2025, and based on any of the above categories.

USCIS is also adjusting the validity periods of the other EAD categories, based on the "One Big Beautiful Bill Act," signed into law on July 4, 2025 by the President. The validity period for initial and renewal employment authorization documents will be one year or the end date of the authorized parole period or duration of Temporary Protected Status (TPS), whichever is shorter for the following categories:

• Aliens paroled as refugees;
• Aliens granted TPS;
• Aliens granted parole;
• Aliens with a pending TPS application; and
• Alien spouse of entrepreneur parole.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Ending of Automatic EAD Extensions

 

USCIS is ending the practice of automatically extending EADs (Form I-766) for individuals who file timely EAD renewal applications, effective October 30, 2025, when an interim final rule is expected to be published. 

Important Changes

• Automatic extensions of Employment Authorization Documents (EADs) are ended for renewal applications filed on or after the publication date (October 30, 2025).
• The prior “up to 540-day automatic extension” based on a timely I-765 renewal no longer applies to new filings after the effective date.
• The already-granted automatic extensions will remain valid.
• Exceptions: TPS-related automatic extensions (provided by statute or specific Federal Register notices) are not affected.
• F-1 students' STEM OPT extensions are not affected.

Who is affected

• Most noncitizens who previously relied on automatic extensions while a renewal EAD (Form I-765) was pending—including common categories like adjustment applicants (C09), asylum applicants (C08), asylees (A05), refugees (A03), H-4 spouses (C26), E/L spouses (A17/A18), VAWA (C31), and others.
• Not affected: EADs or employment authorization that are automatically extended by law or by TPS-specific Federal Register notices.

Transitional rules

• If your renewal was filed before the publication date and you qualified for the up-to-540-day extension, that extension still counts until it ends (approval, denial, or max days).

• If your renewal is filed on/after the publication date, no auto-extension attaches to the receipt—work must stop at EAD expiration unless you have another, independently valid basis for work authorization/evidence.

What foreign workers should do now

1. Calendar your EAD expiration and file renewals as early as allowed (USCIS generally suggests up to 180 days before expiry).

2. Do not use your I-797C receipt notice to extend work authorization for renewals filed after the publication date.

3. Explore alternative work-authorization paths 

4. Coordinate with your employer early on I-9 reverification timing to avoid a work interruption.

What employers/HR should do now

• I-9 reverification:

  • For employees whose renewal was filed before the publication date and who met the prior criteria, an expired EAD plus qualifying I-797C may still evidence an automatic extension (through its original end date).

  • For renewals filed on/after the publication date: do not accept an expired EAD + receipt for List A/ C. Reverify by the EAD expiration date or remove from active employment until acceptable evidence is presented.

• Audit & tracking: Update I-9 ticklers to reflect no new auto-extensions for post-publication filings; retrain staff and revise internal HR protocols.

• Avoid discrimination: Apply reverification uniformly; follow the DOJ guidance on document abuse and unfair documentary practices.

Comment window

The public may submit public comments within 30 days of publication via Regulations.gov (DHS Docket No. USCIS-2025-0271).  However, DHS is invoking the "good cause" exception (for natonal security reasons) to issue this Interim Final Rule, meaning it takes effect immediately rather than after comment review.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)

PDF Filing Option for I-765 EAD Applicants

 

As of October 8, USCIS has rolled out a new, streamlined PDF filing option. This fresh approach allows eligible applicants to upload their completed Form I-765, along with the required supporting documents, directly through their USCIS online accounts. For the first time, you can also electronically file Form I-912, Request for Fee Waiver, making the process more convenient for those seeking a fee waiver.

Who Can Use the New PDF Filing Option?

The new option is available for applicants in the following categories:

• (a)(12): Holders of Temporary Protected Status (TPS).
• (c)(8): Individuals with asylum applications pending since January 4, 1995, or later.
• (c)(9): Family-based and employment-based applicants waiting to adjust their status under Section 245 of the Immigration and Nationality Act.
• (c)(11): Parolees.
• (c)(19): Applicants with initial TPS applications pending, who USCIS has deemed prima facie eligible for TPS, allowing them to receive an EAD as a temporary benefit.

A Heads-Up for (c)(9) Applicants: Fee Exemption Warning

If you're filing under the (c)(9) category and are eligible for a fee exemption, steer clear of the PDF option for now. If you proceed and pay the fee through the new system, there's no turning back – USCIS will not issue refunds. Fee-exempt applicants should stick with paper applications and mail them to the designated address listed on the USCIS website.

Who Gets the Fee Waiver?

The following (c)(9) applicants are exempt from paying the filing fee for Form I-765:

• Special Immigrant Juveniles.
• T nonimmigrants.
• Special Immigrant Iraqi or Afghan nationals.
• Abused spouses or children under the Cuban Adjustment Act or the Haitian Refugee Immigration Fairness Act.
• U nonimmigrants.
• Violence Against Women Act (VAWA) self-petitioners.
• Refugees, parolees, or lawful permanent residents with refugee status.

Manage Your Case with Ease

The new PDF filing option is a positive development for immigrant users.  As with any new features, we expect some hiccups at the beginning.  If you're more comfortable sticking with paper, the traditional mail-in filing option remains available.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Undocumented Spouses of Citizens May Apply for Parole Starting August 19

 

The Biden Administration has announced that, starting August 19, eligible spouses of U.S. citizens will be able to submit applications to apply for benefits pursuant to the recently announced parole in place (PIP) program.  Initially they will be eligible for three years of employment authorization (EAD).  Within this time period, they may also apply for a green card through adjustment of status. 

This parole program was anncouned by the Biden Administration earlier in June of this year.  The purpose is to offer an opportunity for long time spouses of U.S. citizens to be able to obtain legal status without having to depart the United States and be seperated from their family.  Under current immigraion regulations, a person who has entered the United States illegally without a formal inspection and admission by an immigration officer is not allowed to be legalized, even though the person has married a U.S. citizen.  These individuals typically must depart the U.S. and apply for an immigrant visa to return.  Due to their previous immigration violations, it is generally very difficult for them to get a visa. They may first apply for visa waivers or other discretionary relief. 

Starting August 19, 2024, this group of spouses of U.S. citizens may begin submitting applications to apply for parole status in the United States.  If approved for parole in place, the non-citizen spouses will then be permitted to apply for lawful permanent residence within the United States through the adjustment of status process. 

Further details for the application process should be announced in a Federal Register notice soon.  To qualify for parole status, an applicant: 

• Must be present in the United States without admission or parole;
• Must have a legally valid marriage to a U.S. citizen as of June 17, 2024;
• Must be continuously present for at least 10 years as of June 17, 2024;
• Must have no disqualifying criminal history or national security/public safety concerns; and
• Must otherwise merit favorable discretion by DHS.

It should be noted that certain non-citizen children of this group of spouses may also be eligible for benefits under this parole program.  To qualify, a child must be unmarried, under the age of 21, and have been physically present in the United States without admission or parole and have had a qualifying stepchild relationship with the U.S. citizen, both as of June 17, 2024.  Further, the child must have been under the age of 18 at the time of the marriage that created the stepchild relationship.

Applicants must wait for further instructions before they may submit their applications for parole starting August 19.  However, eligible applicants should start collecting supporting documents as soon as possible to get ready.  These documents include their passports, ID documents, marriage certificates, birth certificates, proof of 10 years of physical presence, federal income tax returns, school records, medical documents, etc.   If they have been arrested for any reasons, they must provide documents regarding the final disposition of the case. 

This program can be described as an "once in a life time opportunity" for hundreds of thousands of applicants to be legalized.  Eligible applicants should take it seriously and make every efforts to submit a legally sufficient application.  If in doubt, they should consult with an experienced immigration attorney for further information. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Extends Certain TPS EADs Through March 9, 2025

 

In a significant update for Temporary Protected Status (TPS) beneficiaries, the United States Citizenship and Immigration Services (USCIS) has announced an extension of Employment Authorization Documents (EADs). This extension aims to ensure that individuals under TPS can continue working without interruption while their status is being processed or renewed.  

USCIS is issuing Form I-797, Notice of Action, to specific TPS beneficiaries who are eligible to re-register for TPS or have a pending application to renew their Form I-766, EAD. This notice extends the validity of their EADs through March 9, 2025.

Eligible TPS beneficiaries can present their Form I-797, along with their TPS-based EAD (those with an A12 or C19 code) to their employers. This combination serves as proof of continued employment authorization through March 9, 2025. For employers, this combination is considered an unexpired EAD for Form I-9 purposes, which is critical for verifying employment eligibility.

When updating or completing Form I-9, employers should enter March 9, 2025 as the new expiration date of the automatically extended EADs. This ensures compliance with employment verification requirements and helps avoid any potential legal issues regarding employment authorization. Employer would have to reverify the employee before they start work on March 10, 2025.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Extends EAD Renewal Period Up to 540 Days

 

USCIS has recently introduced a temporary final rule (TFR) that brings significant changes to the renewal process for Employment Authorization Documents (EADs).

Extended Renewal Period:

Effective from April 8, 2024, the temporary final rule extends the automatic extension period for expiring EADs. Previously set at up to 180 days, this extension period is now increased to up to 540 days from the expiration date stated on the EAD. This extension provides vital support to individuals with pending EAD renewal applications, aiming to prevent gaps in employment authorization and documentation.

Key Changes and Eligibility:

The extended renewal period applies to applicants who timely and properly filed their Form I-765, Application for Employment Authorization, on or after October 27, 2023, which is still pending.

It also applies to other eligible applicants who file EAD renewal applications between April 8, 2024 and September 30, 2025.

Eligibility EAD Categories for Automatic Extension:

• Noncitizens admitted as refugees (A03)
• Noncitizens granted asylum (A05)
• Noncitizens admitted as parents or dependent children of noncitizens granted permanent residence under section 101(a)(27)(I) of the INA
• Noncitizens admitted to the United States as citizens of the Federated States of
Micronesia, the Republic of the Marshall Islands, or the Republic of Palau pursuant to agreements between the United States and the former trust territories (A08)
• Noncitizens granted withholding of deportation or removal (A10)
• Noncitizens granted TPS, regardless of the employment authorization category on their current EADs (A12)
• Noncitizen spouses of E-1/2/3 nonimmigrants (Treaty Trader/Investor/Australian Specialty Worker) (A17)
• Noncitizen spouses of L-1 nonimmigrants (Intracompany Transferees) (A18)
• Noncitizens who have properly filed applications for TPS and who have been deemed prima facie eligible for TPS and have received an EAD as a “temporary treatment benefit” (C19)
• Noncitizens who have properly filed applications for asylum and withholding of deportation or removal (C08)
• Noncitizens who have filed applications for adjustment of status to lawful permanent resident (C09)
• Noncitizens who have filed applications for suspension of deportation, cancellation of removal pursuant, or special rule cancellation of removal (C10)
• Noncitizens who have filed applications for creation of record of lawful admission for permanent residence (C16)
• Noncitizens who have properly filed legalization applications (C20) & (C22)
• Noncitizens who have filed applications for adjustment of status pursuant to the Legal Immigration Family Equity Act (C24)
• Certain noncitizen spouses (H-4) of H-1B nonimmigrants with an unexpired Form I-94 showing H-4 nonimmigrant status (C26)
• Noncitizens who are the principal beneficiaries or derivative children of approved Violence Against Women Act (VAWA) (C31).

Proof of Eligibillity:

Eligible renewal applicants can present their qualifying EAD and Form I-797C receipt notice indicating the same employment eligibility category as their underlying EAD to prove automatic extension.

For EAD renewal applications filed after the end of the 540-day filing period established by the rule, the automatic extension period will revert to up to 180 days.

USCIS previously had adopted a 540-day automatic extension period. By reusing this extended extension period, USCIS aims to prevent hundreds of thousands of EAD renewal applicants from facing lapses in employment authorization and documentation through no fault of their own.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Pros and Cons of 5-year EADs

Since 09/27/2023, USCIS has increased the maximum validity period of certain Employment Authorization Documents (EADs) from two years to five years.   The change will apply to EAD applications filed by applicants for adjustment of status based on family and employment categories,  applicants filing as refugees and asylees, and also recipients of withholding of removal.  The increase applies to both initial applications and renewal applications.

The initial reaction to this sudden change in USCIS policy has been mostly positive. Increasing the validity period of EADs has some obvious advantages.  For one thing, it provides more stability for applicants who need to apply for employment, sign a lease or secure a mortgage for a new home.  Further, it saves time and resources by reducing the number of I-765 applications for EADs.  In fact, this is the main reason behind the sudden policy change. 

AC-21 Extensions vs. EAD

Another side effect of 5-year EADs is that H-1B workers may no longer have to file multiple H-1B extensions to obtain employment authorization.  Under the current policy, a foreign worker is only entitled to a maximum of six years of H-1B status.  At the end of the six years, they will lose their H-1B status unless they are able to file for further extensions based on the provisions of the AC-21.  AC-21 §106(a) allows one-year extensions of H-1B status if the applicant has a pending green card application for 365 days or longer.  Under AC-21 § 104(c), an H-1B worker may request for three-year extensions of their status if they have an approved I-140 petition but visa numbers are unavailable.  

With a five-year EAD, H-1B workers may decide not to apply for AC-21 extensions.  In fact, such decisions are often based on economic reasons.  An H-1B employer may be less inclined to agree to pay for the fees for extension of status, if they know that an employee has secured a five-year EAD. Under the current immigration policy, fees associated with H-1B filings are the employer's responsibility.

Pitfalls of 5-year EADs

But, is it really a good idea to just rely on one's EAD?  USCIS reminds applicants that an EAD is an ancillary application. It means that the validity of an EAD is tied to the applicant's adjustment of status application.  If the underlying I-485 application is denied or terminated for whatever reason, the accompanying EAD may also be terminated before its expiration date.  If that happens, one would lose their employment authorization.  

Further, adjustment applicants are not in any immigration status under the current policy; rather, they are only authorized to stay in the United States pending adjudication of their I-485 applications.  Denial of the I-485 means that they are no longer in any valid immigration status.  As a result, they would not be able to change or adjust their status in the United States, unless they fall under one of the limited legal exceptions.  If so, they would be forced to depart the United States to avoid unlawful presence.

What about Advance Parole?

For applicants for adjustment of status, they almost always apply for both EADs and advance parole travel documents simultaneously.  Advance parole allows them to return to the United States after foreign travel without abandoning their adjustment applications. USCIS has issued "combo cards" for both EAD and advance parole in the past. Thus far, USCIS has not announced an increase in advance parole duration. If so, one would expect that five-year combo cards would not be available.  It means that applicants must continue to renew their advance parole every year.  

Conclusion

Five-year EADs certainly save resources and administrative processing time. It also brings some conveniences to many applicants.  However, one should note that not application categories are eligible for five-year EADs. For example, the announcement does not cover H-4 EADs unless these applicants have also filed for adjustment of status.  Further, H-1B workers should understand that relying solely on long-term EADs without maintaining H-1B status is risky. It is strongly recommended that one should maintain a valid immigration status at all times, if it is at all possible. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Extension and Redesignation of Venezuela for TPS Status

DHS today announced extension and redesignation of Venezuela for Temporary Protected Status (TPS) for another 18 months.  Eligible Venezuelans will be allowed to stay legally in the U.S. and granted Employment Authorization Document (EAD).

Only those Venezuelan nationals who have arrived in the U.S. on or before July 31, 2023 are eligible for TPS.  Those who arrived after July 31, 2023 will be subject to deportation. 

One major benefit of TPS status is employment authorization.  Applicants must submit the I-821 and I-765 applications for these benefits.  Applicants who have pending applications do not need to resubmit their applications.  USCIS will automatically extend their status under the new policy. 

According to USCIS, there are currently approximately 242,700 TPS beneficiaries from Venezuela. Approximately additional 472,000 nationals of Venezuela may be eligible under the redesignation of Venezuela. Details of the application process will be released later on.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

 

EAD Production Takes Additional 1-2 Weeks

 

The USCIS Ombudsman Office has confirmed that it will take about one to two weeks for USCIS to produce and deliver the physical Employment Authorization Document (EAD) to the applicant, after the case is approved. This is in addition to the regular or premium processing time. The 30-day premium processing schedule does not include the document production time. Hence, it could potentially take up to 45 days for an applicant to actually receive his/her EAD card, even if he or she pays the additional premium fee of $1,500. Applicants including F-1 students should understand this when they make their employment plans.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

FAQs regarding the Compelling Circumstances EAD

Foreign nationals in the U.S. having trouble maintaining employment authorization while their employment-based applications is processing may be qualified for a compelling circumstances EAD. The adjudication standard for this process is high, but this EAD category can be a lifesaver for those that meet the criteria. Courtesy of the AILA, below are FAQs for anyone interested in applying, with our edits. 

In November 2016, as part of the issuance of a final rule entitled “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” [commonly known as the “High-Skilled” Final Rule], USCIS amended its regulations to allow certain nonimmigrants with approved Form I-140 petitions to apply for an independent employment authorization document (EAD), provided the individual demonstrates “compelling circumstances.” This USCIS final rule became effective on January 17, 2017.

How does a nonimmigrant qualify for a compelling circumstances EAD?

To qualify for a compelling circumstances EAD, the nonimmigrant must satisfy the following criteria:

1.      be the principal beneficiary of an approved Form I-140 petition for classification under the EB-1, EB-2 or EB-3 visa categories;

2.      be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization (Form I-765) is filed;

3.      establish that the principal beneficiary’s priority date for an immigrant visa is not current according to the Final Action Date in effect according to the Department of State’s Visa Bulletin on the date the application for employment authorization is filed; and

4.      the principal beneficiary demonstrates compelling circumstances that, in the discretion of USCIS, justify an independent grant of employment authorization.

Note: an individual will not be eligible for a compelling circumstances EAD, including renewal, if the individual has been convicted of any felony or two or more misdemeanors.

What constitutes compelling circumstances for purposes of qualifying for a compelling circumstances EAD?

Compelling circumstances are generally situations outside a worker’s control that warrant the DHS Secretary’s exercise of discretion in granting employment authorization, on a case-by-case basis, given the totality of the circumstances. While USCIS did not define “compelling circumstances” in its final rule, it did provide some examples of situations that may be considered compelling and justify the need for employment authorization, shown below.

1. Serious illnesses or disability faced by the nonimmigrant worker or his or her dependent

2.   Employer retaliation against the nonimmigrant worker

3.   Other substantial harm to the applicant; and

(Examples: Unexpected loss of employment and similar job opportunties do no exist in home country; Uprooting of family which result in substantial harm.)

4.      Significant disruption to the employer

Adjudicators will look at various factors, including all factors identified by the applicant, and may consider whether the evidence supports providing compelling circumstances employment authorization. DHS will not, however, consider a long wait for an immigrant visa to constitute a compelling circumstance on its own. Similarly, home ownership, notable academic qualifications, or dissatisfaction with a position or salary, standing alone, do not rise to the level of a compelling circumstance. Furthermore, an interest in entrepreneurship standing alone cannot support an employment authorization request based on compelling circumstances. However, any one of these situations could rise to the level of compelling circumstances in combination with other circumstances.

Beneficiaries of approved EB–2 National Interest Waiver petitions, which include national interest waiver beneficiaries as well as physicians working in medically underserved areas, are eligible to apply for employment authorization based on compelling circumstances, as long as they meet all other applicable eligibility requirements.

What is the validity of a compelling circumstances EAD?

USCIS is authorized to issue a compelling circumstances EAD for up to one (1) year from the date of issuance, with the option to renew the EAD in 1-year increments.

What is the EAD category for individuals who are granted a compelling circumstances EAD?

Principal beneficiaries who receive an initial grant of employment authorization based on “compelling circumstances” (or a renewal of such employment authorization) will receive an EAD based on category (c)(35). Qualifying dependent spouses and children of a principal beneficiary granted employment authorization under category (c)(35) who apply for work authorization will receive EAD cards based on category (c)(36).

How does one renew a compelling circumstances EAD?

The applicant must file the application to renew his or her compelling circumstances EAD application prior to the expiration of his or her current employment authorization. Applicants must be in the United States when applying for the benefit.

In order to be eligible to renew the compelling circumstances EAD pursuant to 8 CFR §204.5(p)(3), the principal beneficiary must demonstrate that,

1.      he or she continues to face compelling circumstances and establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the renewal application is submitted to USCIS; or

2.      the difference between his or her priority date and the relevant Final Action Date is 1 year or less (eligibility does not require demonstrating compelling circumstances).

What is the immigration status of the principal worker who obtains a compelling circumstances EAD?

While individuals eligible for compelling circumstances EAD must have lawful nonimmigrant status at the time they apply, such individuals will generally lose that status once they engage in employment pursuant to the EAD. While such a foreign national will no longer be maintaining nonimmigrant status, he or she will generally not accrue unlawful presence during the validity period of the EAD or during the pendency of a timely filed and non-frivolous application.

USCIS indicates in its final rule that “USCIS intends to adjust its policy guidance to confirm that holders of compelling circumstances EADs will be considered to be in a period of authorized stay,” As the principal applicant’s authorized stay does not automatically extend to any dependent family members, dependents who require this authorized stay should apply for a compelling circumstances EAD under the dependent classification (i.e. (c)(36) applicant), as discussed below.

Is a compelling circumstances EAD applicant eligible to apply for adjustment of status?

An individual who is seeking lawful permanent residence based on classification as an employment-based immigrant is generally barred by INA §245(c)(2) and (c)(7) from applying for adjustment of status if he or she is not in lawful nonimmigrant status. Thus, a compelling circumstances EAD applicant who uses the EAD for work may be ineligible to apply for adjustment based on an employment-based immigrant classification unless an exception, such as INA §245(k), applies.

May a compelling circumstances EAD applicant who needs to travel abroad for urgent humanitarian reasons or significant public benefit apply for advance parole?

While the preamble to the final rule suggests that DHS may consider granting advance parole for individuals with compelling circumstances EAD to travel for urgent humanitarian reasons or significant public benefit on a case-by-case basis, neither the regulation as set forth under the final rule, USCIS website on compelling circumstances EAD, nor Form I-131 instructions provide any guidance on this point. Accordingly, barring another basis for an advance parole, it is unclear whether a compelling circumstances EAD applicant may apply for an advance parole.

May the dependent spouse and children of the principal nonimmigrant worker apply for a compelling circumstances EAD?

Yes. The dependent spouse and children of the principal beneficiary may apply for a compelling circumstances EAD, provided they are in nonimmigrant status at the time the principal beneficiary applies for the employment authorization and provided that the principal beneficiary has been granted employment authorization and that work authorization has not been terminated or revoked. Such family members may apply for employment authorization concurrently with the principal beneficiary, but they cannot be granted employment authorization until the principal beneficiary has been granted work authorization. The validity period of employment authorization granted to the family members may not extend beyond the validity period of employment authorization granted to the principal beneficiary.

How does an individual submit a request for a compelling circumstances EAD?

To apply for a compelling circumstances EAD, an individual must file Form I-765, Application for Employment Authorization, with USCIS. Note that two identical two-by-two inch passport style color photographs of the applicant must be submitted with the application.

How long does it take for USCIS to process a compelling circumstances EAD?

Processing times for compelling circumstances EADs can vary greatly. Some members report waiting several months for a compelling circumstances EAD. While expedited processing can be requested, expedite requests are granted at the discretion of USCIS. As such, nonimmigrants who are seeking to take advantage of this immigration benefit should be apprised of the possibility that the benefit could take several months for USCIS to process.

Must the principal beneficiary wait for the EAD application to be approved before commencing work pursuant to the EAD?

Yes. An individual must receive the compelling circumstances EAD from USCIS before they can begin working under this employment authorization.

Is the renewal of a compelling circumstances EAD eligible for auto extension?

No. The compelling circumstances EAD is not classified as an EAD eligible for automatic extension while a timely filed renewal application is pending.

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As explained, the "compelling circumstances" EAD could be a lifesaver for the needy ones. But the evidentiary standard is quite high.  Interested persons should be prepared to provide sufficient documentation to support their application.  If in doubt, one should consult with a qualified immigration attorney.

 Source: AILA Doc. No. 23040751.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Premium Services for OPT and STEM OPT I-765

 

By Paul Szeto LLC

For the first time ever, USCIS will allow F-1 students to file their OPT and STEM OPT employment authorization applications using Premium Processing Service for the following categories:

• (c)(3)(A) – Pre-Completion OPT;
• (c)(3)(B) – Post-Completion OPT; and
• (c)(3)(C) – 24-Month Extension of OPT for STEM students.

The specific timetable is as follows:

1) Beginning March 6, 2023:   F-1 students will be allowed to upgrade pending Form I-765s (Applications for Employment Authorization) to Premium Processing Services via Form I-907 (Request for Premium Processing Service).

2) Beginning April 3, 2023:  F-1 students will be allowed to use Premium Processing Service when filing a new I-765 applications. 

USCIS will reject applications if they do not follow the above timeline. 

Applicants may submit the applications online or by mail. An online myUSCIS.gov account is required for online filing.  

F-1 students are reminded that they must follow the filing instructions and legal requirements to avoid delay or rejections.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Humanitarian Parole for Cubans, Haitians, Nicaraguans, and Venezuelans

The U.S. Department of Homeland Security (DHS) announced a process for certain qualified Cubans, Haitians, and Nicaraguans to enter the United States legally as parolees.  After entry by air, these individuals will be eligible to stay temporarily and work legally in the country.  DHS also eliminated a numerical cap for a similar process for Venezuelans announced previously.

Basic Requirements

Under this program, nationals from Cuba, Haiti, Nicaragua, and Venezuela will be granted advanced authorization to enter the U.S. if they meet the legal requirements, including the following three:

1) They must have a U.S. supporter who will promise to provide them with financial and other support;

2) They must undergo and clear a robust security vetting process; and 

3) Deserve a favorable exercise of discretion based on humanitarian reasons or other public interest benefits.

Applicant Eligibility

An eligible applicant under this program must: 

• Be outside the United States;
• Be a national of Cuba, Haiti, Nicaragua, or Venezuela; or be an immediate family member (spouse, common-law partner, and/or unmarried child under the age of 21) who is traveling with an eligible Cuban, Haitian, Nicaraguan, or Venezuelan;
• Have a U.S.-based supporter who filed a Form I-134A on their behalf that USCIS has vetted and confirmed;
• Possess an unexpired passport valid for international travel;
• Provide for their own commercial travel to an air U.S. POE and final U.S. destination;
• Undergo and pass required national security and public safety vetting;
• Comply with all additional requirements, including vaccination requirements and other public health guidelines; and
• Demonstrate that a grant of parole is warranted based on significant public benefit or urgent humanitarian reasons, and that a favorable exercise of discretion is otherwise merited.

A person is ineligible for parole if the person:

• Is a national or permanent resident of, or holds refugee status in, another country, unless he/she is an immediate family members (spouse, common-law partner, or unmarried child under the age of 21) of an eligible national of Cuba, Haiti, Nicaragua, or Venezuela with whom they are traveling.
• Fails to pass national security and public safety vetting or is otherwise deemed not to merit a favorable exercise of discretion;
• Has been ordered removed from the United States within the prior five years or is subject to a bar to inadmissibility based on a prior removal order;
• Has crossed irregularly into the United States, between the POEs, after the date the process was announced, except individuals permitted a single instance of voluntary departure or withdrawal of their application for admission. 
• Has irregularly crossed the Mexican or Panamanian border after the date the process was announced; or
• Is under 18 and not traveling through this process accompanied by a parent or legal guardian, and as such is a child whom the inspecting officer would determine to be an unaccompanied child.

Who can be a U.S. sponsor?

Almost anybody who is legally residing in the U.S. and willing to provide financial and other support can be a sponsor, including: U.S. citizens and residents, refugees, asylees, temporary workers and visitors, individuals granted TPS, DACA and DED statuses.  

A sponsor must pass security and background vetting and demonstrated sufficient financial resources to receive, maintain, and support the individual(s) whom they commit to supporting for the duration of their stay in the United States.  They must provide supporting documents such as bank statements, employment and income verification, income tax return transcripts, etc. Several sponsors can join their efforts to sponsor one beneficiary.  Organizations and other business entities may also provide additional support. 

Basic Applicant Process

Step 1: U.S. Sponsor to Confirm Financial Support

A U.S.-based supporter will submit a Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, with USCIS, for each beneficiary.  USCIS will first confirm that the supporter  is financially capable of sponsoring the beneficiary. 

Step 2: Beneficiary to Submit Biographic Information

Upon receipt of an email notification from USCIS, the beneficiary must confirm their biographic information in myUSCIS and attest to meeting the eligibility requirements including public health requirements, and certain vaccination requirements.

Step 3: Beneficiary to Submit Request in CBP One Mobile Application

After his/her biographic information has been confirmed, the beneficiary will receive instructions through myUSCIS on how to access the CBP One mobile application.  The beneficiary must enter their biographic information into CBP One and provide a photo.

Step 4: Advance Travel Authorization to the United States

Next, the beneficiary will receive a notice in their online account confirming whether CBP will, in its discretion, provide them with advance authorization to travel to the United States to seek a discretionary grant of parole on a case-by-case basis.

Step 5:  Approval and Planning Air Travel to the United States

Upon approval by CBP, the beneficiary will be given authorization to travel to the U.S. within 90 days.  Beneficiaries must purchase their own travel tickets to fly by air to the United States.  

Step 6: Seeking Parole at the Port of Entry

When beneficiaries from these countries arrive in a port of entry, they will still have to go through additional screening and vetting, including additional fingerprint biometric vetting as part of the CBP inspection process. Finally, CBP will inspect them again and grant discretionary parole on a case-by-case basis.  Parole will be granted for up to two years of duration. 

Conclusion

This new process for granting advanced parole to Cubans, Haitians, Nicaraguans, and Venezuelans is good news for the needy citizens of these countries.  Once approved, parole status can be extended and employment authorization will also be granted. Eligible individuals should apply as soon as possible.  The application process and requirements are complicated.  Sponsors and beneficiaries should seek legal assistance if they have any questions regarding the application process.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Burma (Myanmar) has been Redesignated for TPS; Burmese F-1 Students Employment Opportunities Extended

In a recent public notice published by the DHS, the agency has extended TPS for Burma (Myanmar) for 18 months, from 11/26/2022 to 05/25/2024.

Re-registration of Existing Beneficiaries:  Burmese nationals have 60 days to re-register again for TPS from 09/27/2022 to 11/26/2022.   DHS reminds them to re-register as soon as possible to avoid lapses of their employment authorization document (EADs).

First-time Registration:  For new applicants, they may register for TPS anytime from 09/27/2022 through 05/25/2024.  Burmese nationals must demonstrate continuous residence in the United States since 09/25/2022 and continuous physical presence in the United States since 11/26/2022.  They must file the Form I-821 with USCIS during the initial registration period.  Eligible applicants may also file Form I-765 to apply for EADs and Form I-131 for travel authorization during this time. 

For those applicants who already have pending TPS and/or EAD applications, it is not necessary for them to file new applications. USCIS will approve these pending applications taking into account the new designation period. 

Further, DHS is also offering a one-year automatic extension for applicants who filed a timely EAD extension application, through 11/25/2023.  

Burmese F-1 Students Afforded More Employment Opportunities

To further assist Burmese students who may have suffered from severe economic hardship as a result of the humanitarian crisis in Burma, DHS is also extending the existing special exceptions to F-1 employment rules for Burmese students. For examples, Burmese F-1 students may request employment authorization while school is in session; they may request for additional work hours and reduce their regular course load, etc.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Ombudsman Report Addresses Delay in Renewal EAD and Travel Document

In the 2021-2022 annual report provided by the Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman), some important issues about immigration applications are discussed and recommendations made:

Delay in Issuing Renewing EAD

The extended processing time of EAD renewal applications is one of the most significant problems addressed. In fiscal year 2021, USCIS received 2.59 million applications for EAD. Half of the applications were based on a pending adjustment of status application (I-485) and asylum and withholding of removal application (I-589). According to the information published by USCIS, the median processing time for adjustment and asylum-based EADs is 7.5 months and 6.5 months, respectively. However, the report shows that more than 50% cases would take longer to be adjudicated. 

The severe delay of EAD applications interrupt applicants' employment and simultaneously interrupt the ability of U.S. business to employ their workforce continuously. The Ombudsman Office therefore urges USCIS to take further action to minimize lapses in applicants' employment authorization, including: 

• Further extend the existing automatic extension periods and also consider new regulations to provide more flexibility to applicants who are waiting for a decision on EAD renewal; 
• Provide better options for nonimmigrant spouses for EAD renewal; 
• Allow early filing for renewal; and
• Continue to expedite EAD renewals for workers for national interest purposes, etc. 

Barriers to Travel - Severe Delay of Advance Parole Document

Delay issuance of the Advance Parole document is another major issue addressed. As the wait for processing green card applications can range from 8 months to more than 20 months, the applicants' need for traveling increases as well. The requests received by the USCIS Contact Center and field offices to expedite and to obtain an emergency advance parole almost doubled, and applicants are finding it more difficult to receive the travel document in a timely manner. 

USCIS indicates that it takes time for the officers at field offices to make a discretionary decision on the emergency advance parole requests. As a result, certain USCIS offices do not schedule appointments for such requests after mid-afternoon to give the office time to complete the necessary steps. Other issues including staff shortage mean that applicants often has to wait days, or even weeks before they can hear back from the USCIS on their requests. Sometimes even worse, they have to make multiple follow-ups just to find out their request is no longer considered an “emergency” since they have had the time to wait for the response.

Improving Access to Expedite Process

The Ombudsman Office also discussed the process of the expedited request for immigration applications. The current criteria for expedited services including severe financial loss, emergencies and/or urgent humanitarian reasons, etc. While this is a way for applicants to speed up their applications based on sufficient reasons, the Ombudsman also notices that there is a lack of consistency and transparency when USCIS considers these requests. 

Hence, the Ombudsman Office encourages the USCIS to establish a centralized technological infrastructure and specialized personnel to intake and process expedite requests, and to develop a public-facing portal for receiving requests and supporting documents. Also, it would be helpful to create a new form for expedited requests submission, and to develop standardized guidance to officers while adjudicating the requests. 

Other issues discussed included the lack of efficiency of USCIS's online filing system and the continuous grown of the affirmative asylum cases backlog. The Ombudsman has urged USCIS to refine their operational approaches to improve the quality and efficiency while handling these matters, without compromising their integrity or equity.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

Automatic Extensions of EAD Lengthened to 540 Days

According to an advanced copy of a temporary DHS regulation, automatic extensions of certain employment authorization documents (EADs) will be extended from 180 days to up to 540 days beginning May 4, 2022 until October 26, 2023.  After October 26, 2023, automatic extension will revert to the current 180 days.  

Under the current USCIS policy, certain EAD applications will enjoy 180-day of automatic extensions until the application is approved or denied.  However, as many applicants may have noticed, the current processing times of EAD applications are extremely long.  As a result, many applicants lose their eligibility to work legally in the United States and their livelihood is jeopardized.

The new policy aims at addressing the current long processing times of the EAD applications by providing longer periods of automatic extension to applicants so that they may continue to work legally.

Who may benefit from this new policy?  Generally, the 540 automatic extension will be available to applicants who have a pending I-765 EAD application between May 4, 2022 and October 26, 2023. 

 Applicants will not receive a new receipt notice or separate documents to indicate  the additional 360 days of extension.  They may continue to use the Form I-797C notice with 180-day extension as proof of their eligibility to work. 

For those applicants who filed their EAD extension application before May 4, 2022, and their 180-day automatic extension has already expired, they may still be eligible for the 540-day extension.  Their employment eligibility will resume on the effective date of the new regulation on May 4, 2022.   These applicants will be eligible to work for 540 days from the expiration date of their expired EAD card.

It should be noted that H-4 and L-2 spouses may not benefit from this new policy if their I-94s have already expired. 

The following categories of I-765 applicants are eligible for the new 540-day extension: 

(a)(3) Refugee; 

(a)(5) Asylee;  

(a)(7) N-8 or N-9; 

(a)(8) Citizen of Micronesia, Marshall Islands, or Palau;

(a)10) Withholding of Deportation or Removal Granted; 

(a)(12) Temporary Protected Status (TPS) Granted; 

(a)(17) Spouse of principal E nonimmigrant with an unexpired I-94 showing E nonimmigrant status; 

(a)(18) Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 nonimmigrant status2

(c)(8) Asylum Application Pending

(c)(9) Pending Adjustment of Status under Section 245 of the Act

(c)(10) Suspension of Deportation Applicants (filed before April 1, 1997) / Cancellation of Removal Applicants / Special Rule Cancellation of Removal Applicants Under NACARA

(c)(16) Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)

(c)(19) Pending  initial application for TPS where USCIS determines applicant  is  prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.

(c)(20) Section 210 Legalization (pending I-700)

(c)(22) Section 245A Legalization (pending I-687)

(c)(24) LIFE Legalization

(c)(26) Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status

(c)(31) VAWA Self-Petitioners

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)