When foreigners with work visas lose their jobs, it can set off a domino effect. Not only could they lose their legal status, but their family might too, which can bring massive challenges to the entire household.
However, if they meet certain “compelling circumstances”, they might be eligible for a (c)(35) category EAD (Employment Authorization Document). While this isn’t a permanent solution, it does offer a lifeline in certain situations.
On June 14, 2023, the USCIS released policy alert, PA-2023-18, providing guidance of what might qualify one for a (c)(35) category EAD.
Consequences of Losing Status
If you lose your legal status and stay in the U.S. without proper authorization, it may constitute “unlawful presence” with the following consequences:
- Unlawful presence for more than 180 days results in a 3-year ban from being re-admitted to the U.S.
- Unlawful presence for more than 365 days leads to a 10-year ban.
- It can also make you ineligible for adjustment of status (to get a green card), and could put you at risk of deportation.
What Is a (c)(35) EAD?
(c)(35) offers some individuals a temporary work authorization based on “compelling circumstances”, mainly for the following groups:
- Those with non-immigrant visas like E-3, H-1B, H-1B1, L-1, or O-1.
- Those whose I-140 immigration application has been approved.
- Those who, due to green card backlogs, can’t yet file for I-485 (adjustment of status).
Defining “Compelling Circumstances”
The USCIS has clarified what qualifies as “compelling circumstances”:
- Serious health issues: For instance, diseases that require ongoing medical care and are life-threatening.
- Employer misconduct: Like facing unjust firing or experiencing retaliation from the employer.
- Unexpected substantial harm: Such as suddenly losing a job due to massive layoffs, leading to significant financial difficulties for the applicant, or situations in their home country that make it impossible to leave the U.S. and return home.
Just note, if you’re only out of work or if you’ve reached the maximum allowable time for a particular immigration status, the USCIS usually doesn’t consider that as “compelling circumstances” unless you can prove there are other factors intensifying the hardships due to unemployment.
Besides the applicant’s “compelling circumstances”, if unforeseeable reasons prevent the continuation of an employer-sponsored work permit, causing substantial disruption or financial losses to the employer’s operations, that might also qualify for the (c)(35) category EAD.
Case Study Analysis
Case 1: Let’s say an engineer with an H-1B visa was recently diagnosed with a rare disease and needs treatment in a Seattle hospital. His company only operates on the East Coast and doesn’t offer remote work. In this scenario, he can apply for the (c)(35) work permit. Once approved, he can legally stay in the U.S., move to Seattle for treatment, and also work lawfully.
Case 2: Imagine an L-1A employee working for a multinational corporation who gets laid off due to company restructuring. Both he and his dependent spouse are about to lose their legal status. However, due to war or an epidemic in their home country, returning is not feasible. In this case, both he and his spouse can respectively apply for the (c)(35) and (c)(36) work permits to maintain their legal status in the U.S.
Case 3: An L-1B employee exposes potential illegal or improper conduct within the company and faces retaliation from the management, including threats of dismissal or reassignment. He might qualify for the (c)(35) category EAD.
Pros and Limitations
If you face the “compelling situations” discussed in this article, not only can you apply for the temporary (c)(35) work permit, but your dependents, including spouses and minor children, can also apply for the (c)(36) temporary work permit.
However, this temporary work permit isn’t a long-term solution. It doesn’t help you adjust your status or acquire immigrant status. It’s simply a way to request the USCIS to “pause” from calculating your unlawful presence time in the U.S.
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