Immigration

Immigration News Bulletin July 2023

EAD Guidance based on Compelling Circumstances

USCIS recently issued new guidance on Employment Authorization Document (EAD) based on compelling circumstances. The guidance applies to both initial applications for an EAD or for a renewal of an EAD.

In order for the compelling circumstances to apply for an initial EAD, USCIS states that the following eligible requirements must be met:

• The principal applicant is the principal beneficiary of an approved Form I-140, in either the 1st, 2nd, or 3rd employment-based preference category;
• When filing an I-765, the principal applicant is in a valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period;
• There has not been an adjustment of status application filed;
• An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765;
• Biometrics are required for applicant and their dependants;
• The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
• As a matter of discretion, USCIS determines that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

Per the USCIS bulletin, the guidance does not give an exhaustive list of what constitutes a compelling circumstance. Rather, USCIS seems to be taking the position that it will review each application for a compelling circumstance on a case by case basis. Nevertheless, USCIS did provide some guidance on what may be considered a compelling circumstance. These include: serious illness or disability; employer dispute or retaliation; significant disruption to the employer or other substantial harm to the applicant.

Finally, the bulletin provides examples of what kinds of evidence may be submitted to the USCIS to demonstrate a compelling circumstance. The bulletin provides an example of a principal applicant who has lived in the US for an extended period of time and has evidence which includes mortgage payments, or school records, who has an approved petition in an oversubscribed visa category. A compelling circumstance in this example would be if the applicant loses their job, then the family would be forced to sell their home at a loss, pull their children out of school and move back to their home country.

While this news may be disappointing to some who would like to have seen an update in priority dates, this guidance does provide some relief to those who would otherwise have no option but to move back to their home country in the event that there is a major negative change to their life. 

https://www.uscis.gov/newsroom/alerts/uscis-provides-guidance-on-employment-authorization-documents-based-on-compelling-circumstances

Implications of Multiple Registrations of H1B for FY 2024

This chart shows registration and selection numbers for fiscal years 2021-2024 (as of April 24, 2023).

H1B is one of the most out visas in the world and has witnessed intense competition over the years. This could be seen with demand for nearly 484,000 applications being filed in the Financial Year(FY) 2023. This has seen further growth as seen in the record high set by the nearly 781,000 applications for the FY 2024. However, while data shows that some of this massive increase is organic, a bulk of it is due to multiple registrations by the applicants. Data has shown that while about 350,000 applicants submitted one entry, the rest submitted multiple. A massive portion of these multiple registrations was by a handful of companies causing concerns of fraud.

While it isn’t technically illegal for an applicant to have multiple companies submit visa applications on their behalf, companies submitting registrations must attest that they have a real job for the employee in question if they win a visa. Also, if multiple H1B registrations were filed for the same applicant to increase their chances of H1B lottery selection by a company or they worked with another company for the same, then they will consider that the registration was not properly submitted. Considering that the registrations are not properly submitted, USCIS may deny, or revoke the petitions due to false attestation.

USCIS would issue a Notice of Intention to Deny (NOID) if they find the companies to be related by common ownership such as family relationships, registrations done by the same agent, etc. as these can be evidence of improper submissions. They might also issue H1B Revocation Notices instead for similar reasons noted.

In case of receiving a NOID letter due to filing multiple registrations, applicants would have a final chance to prove that the registrations were filed properly, failing which, their petition is not counted and the fees are lost. Fraud or willful misrepresentation is illegal and might even lead to the applicant being barred from entering the US, and while no action of the sort has been noted, it is better to err on the side of caution.

On the denial or revocation of the registration, the employer who attested might be liable for fraud or misrepresentation and be investigated, reviewed, or even prosecuted for the same. This is because, when someone submits, they are signing under oath that they are not filing any duplicate registrations to unfairly increase the chances of H1B lottery selection for an applicant. This could also mean that there might be allegations of perjury as well.

While the actions of USCIS might cause concern for many employers hoping to hire highly skilled foreign talent, and for potential immigrants hoping to gain a foothold into the USA, these actions might prove necessary to combat the increasing immigration fraud the US seems to be experiencing, and to benefit the same immigrants by removing those who intend to take unfair advantage of the system, thereby harming the genuine applicants.

Source

The Contributor of these articles is, Madhurima Boyapati Paturi. She is current Immigration/Legal Chair for ATA.

Disclaimer: The information provided here in is for public service and may not apply to any specific or particular circumstance. This information is not intended as, and should not be taken as, legal advice .Please consult an attorney about your particular factual and legal circumstances.