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Tech Layoffs and Compelling Circumstances EAD

Recent widespread layoffs, primarily in the technology sector, have left many H-1B workers and other nonimmigrant workers with questions regarding their options to lawfully remain in the United States after being terminated. In response to the increasing number of layoffs, U.S. Citizenship and Immigration Services (USCIS) released an update on the options for nonimmigrant workers whose employment has been terminated, either voluntarily or involuntarily. 

One of the listed options is a compelling circumstances employment authorization document (EAD). A compelling circumstances EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent residence by preventing the need to abruptly leave the U.S. USCIS stated that workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:

  1. do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and
  2. face compelling circumstances.

But what is considered a “compelling circumstance”? In 2016, the Department of Homeland Security (DHS) issued a final rule, which provided four examples of situations that, depending on the totality of the circumstances, may be considered compelling and justify the need for employment authorization: 

  1. serious illness 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 
  4. significant disruption to the employer. 

DHS noted that these cases will be decided on a case-by-case basis and may involve facts that vary from those provided above. 

A nonimmigrant worker whose employment has been terminated may try to argue that losing their job has caused them and/or their family substantial harm. DHS provided some examples that may be considered substantial harm, including:

  • An H-1B nonimmigrant worker who has been applying an industry-specific skillset in a high-technology sector for years with a U.S. entity that is unexpectedly terminating its business, where the worker is able to establish that the same or a similar industry (e.g., nuclear energy, aeronautics, or artificial intelligence) does not materially exist in the home country. 

However, DHS stated that job loss alone will not be considered substantial harm to the applicant, unless an individual can show additional circumstances that compound the hardship associated with job loss. This is because the compelling circumstances requirement is a higher standard than mere inconvenience. Thus, although a compelling circumstances EAD may be an option for nonimmigrant workers who have been laid-off, they would need to establish the harm resulting from the loss of employment and the benefits to be gained by being able to continue employment in the U.S., which may be difficult. Therefore, it is possible to make a compelling circumstance case, but because of the level of substantial harm one must prove, it is unlikely that USCIS will grant it unless one is facing extreme hardship.  

It is important to note that if an individual is approved for a compelling circumstances EAD, they will no longer be maintaining nonimmigrant status but generally will be considered to be in a period of authorized stay and will not accrue unlawful presence in the U.S. while the EAD is valid. Thus, if they want to get back to nonimmigrant status, they must travel outside the U.S., attend visa stamping at the consular office and then enter back into the U.S. in order to change back to a nonimmigrant visa. 

If you have any questions about the compelling circumstances EAD, please contact our office to set up a consultation with one of our attorneys today!