A new Biden administration policy on temporary work visas is an affront to immigration limits enacted by Congress.
U.S. Citizenship and Immigration Services (USCIS) issued a policy guidance last week explaining the eligibility criteria for employment authorization documents (EADs, i.e.. work permits) based on “compelling circumstances.” This guidance builds off of an existing regulatory provision, found at 8 C.F.R. § 204.5(p), that permits the issuance of “compelling circumstance” EADs to aliens who are currently in an employment-based nonimmigrant status (on E–3, H–1B, H–1B1, O–1, or L–1 visas) and who have an approved Form I-140, Immigrant Petition for Alien Workers (meaning that they may one day be eligible to receive a green card).
USCIS described the compelling circumstances-based EAD as a “temporary stopgap measure intended to address particularly difficult situations, including those that may have otherwise forced individuals on the path to lawful permanent residence to abruptly stop working and leaving the United States.” The agency appears to have issued this guidance to expand options to recently laid off foreign workers that depend on employment in the United States in order to retain a lawful immigration status -- most of these have H-1B visas. Most troublingly, the document provides an expansive, non-exhaustive list of circumstances that would permit aliens who are soon to fall out of status to nevertheless continue to live and work in the United States. (Most of these have H-1B visas.)
The policy guidance explained that “compelling circumstances” is generally meant to cover situations “in which the nonimmigrant is no longer able to continue employment with their employer and faces serious harm … beyond that which is normally associated with job loss.” USCIS includes situations such as serious illness or disability that adversely affects the principal applicant’s ability to continue their previously approved employment; an employer dispute that affects the alien’s ability to continue the previously approved employment; or significant disruption to the employer because of an alien’s inability to timely extend or change status to continue employment with their employer, as potentially valid circumstances that could warrant issuance or renewal of an EAD.
While USCIS states that “compelling circumstances,” should not include “reaching the maximum statutory or regulatory period of allowed nonimmigrant status” generally “without compounding factors,” the agency’s guidance contradictorily provides relatively normal (albeit not ideal) situations as examples of adequately compounding factors. For instance, as an example, the guidance describes “a principal applicant with an approved immigrant visa petition in an oversubscribed visa category … who has lived in the United States for a considerable period of time, and has school-aged children and a mortgage, may face compelling circumstances if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull the children out of school, and relocate to their home country.”
While it may be difficult on an emotional or logistical level for an alien to relocate to their home country at the end of their authorized period of stay for the reasons provided above, aren’t these types of situations simply the natural conclusion to participation in a temporary work program in a foreign country? Surely, Congress did not condition the validity period of a nonimmigrant visa (and corresponding work authorization document) to the existence of a favorable housing market.
If Congress wanted to permit these classes of aliens to remain and work in the United States pending the availability of an immigrant visa beyond the scope of their nonimmigrant visa, it has the ability to do so. Nevertheless, Congress has both capped the annual issuance of immigrant visas and limited the time and conditions under which a nonimmigrant worker may remain and work lawfully in the United States. It is unreasonable, however, to consider the need to depart the United States following the end of an alien’s authorized period of stay to be one that should be considered such an unusual hardship that warrants administrative intervention. By limiting authorized periods of stay for nonimmigrant visa categories, Congress implicitly approved a scheme that would require affected aliens to eventually depart the country.
Furthermore, just because an alien may have an approved Form I-140, Immigrant Petition for Alien Worker, does not mean that alien will ultimately receive a green card. The alien must still wait for a visa to become available in the appropriate immigrant visa category in order to be able to submit an Form I-485, Application to Register Permanent Residence or Adjust Status, and USCIS may ultimately deny their application for a number reasons.
USCIS’s policy, however, does not require USCIS officers to determine whether the agency would approve the alien’s potential Form I-485 submission prior to issuing the “compelling circumstance EAD.” Rather, the policy is premised on the assumption that the alien who falls out of their nonimmigrant status would still eventually receive a green card. In my view, it is unfair to treat these applicants differently from other prospective immigrants who must wait their turn outside the United States.
Congress deliberately imposed these limits on legal immigration to address a variety of competing policy interests, including to protect the domestic labor market. USCIS’s policy, nevertheless, furthers the open-borders idea that all an alien must to do to live and work in the United States permanently is arrive and stay out of trouble. That is not the system Congress created.