A Big US immigration services update offers promise to H-1B and L-1 visa holders amidst uncertainty and jobless
Employment Authorization Documents rules have been revised by U.S. Citizenship and Immigration Services to provide a new lifeline for unemployed Indian immigrants.
There is a glimmer of hope for Indian immigrants residing in the United States despite the recent layoffs at major technology companies. The U.S. Citizenship and Immigration Services (USCIS) has issued a new policy, PA-2023-18, which outlines a new plan for Employment Authorization Documents (EADs) in exigent situations.
Joe Biden is inaugurated as the 46th President of the United States on January 20, 2021, at the US Capitol in Washington, DC. (Image: ANGELA WEISS / AFP)(AFP)
The new policy framework creates a legal pathway for beneficiaries of approved employment-based immigrant visa petitions who experience visa availability backlogs. The policy seeks to mitigate the disruptive impact of unanticipated job loss or other unfavourable circumstances that could jeopardize the status of Indian workers in the United States.
Many Indians living in the United States are in the 100+ year green card backlog for EB-2/3, and losing a job means one has 60 days to find a new job or risk leaving the country despite having lived here for 10+ years and establishing an existence.
How will new US Immigration services regulations assist Indian immigrants?
Indian professionals operating in the United States on H-1B or L-1 nonimmigrant visas stand to benefit the most from this policy shift. In accordance with the updated provisions outlined in the USCIS press release, they may apply for EADs under compelling circumstances, such as severe illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or substantial disruption to the employer.
This policy measure serves as a safety net, assuring the financial stability of Indian immigrants while they pursue more stable employment opportunities. In addition, the policy specifies the types of evidence that petitioners may submit to demonstrate compelling circumstances. These may include school or university enrollment records or mortgage documents, demonstrating the potential hardship if compelled to sell their property at a loss, interrupt their children’s education, and relocate to India.
This new USCIS directive is a pragmatic approach to addressing the plight of immigrant employees, particularly those from India, who make up a substantial portion of the US IT workforce. In addition, the policy emphasizes that a person with a valid EAD based on compelling circumstances will not accrue unlawful presence, protecting them from precipitous interruptions on their path to permanent residency.
Moreover, this action bolsters the sense of security for the families of these professionals, as their dependents can also apply for EADs under compelling circumstances, adding an additional layer of assurance to an otherwise complex immigration landscape.
US Immigration Services Eligibility criteria for policy benefits
The policy specifies that applicants must be the principal beneficiary of an authorized Form I-140, Immigrant Petition for Alien Workers, in either the first, second, or third employment-based preference category to be eligible.
When submitting Form I-765, Application for Employment Authorization, the applicant must have a valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or an authorized grace period. Click here for more information on eligibility.
The H-1B, H-1B1, and E-3 Temporary Programs: An Overview
H-1B
Employers may temporarily employ nonimmigrant foreign employees in specialty occupations or as fashion models of exceptional merit and ability under the H-1B program. A specialty occupation requires the theoretical and practical application of a corpus of specialized knowledge as well as a bachelor’s degree or its equivalent in the particular specialty (for instance, disciplines, medicine, health care, education, biotechnology, and business specializations, etc.).
Current laws limit the annual number of foreign employees eligible for an H-1B visa or status to 65,000, with an additional 20,000 allowed under the H-1B advanced degree exemption. Refer to the U.S. Citizenship and Immigration Services (USCIS) website for additional details regarding the H-1B quota, cap qualifications, and H-1B petitions.
H-1B1
The H-1B1 program permits temporary nonimmigrant employment of foreign employees from Chile and Singapore in specialty occupations in the United States. Current laws limit the number of foreign employees eligible for an H-1B1 visa to 6,800 per year, with 1,400 coming from Chile and 5,400 from Singapore. For information on the H-1B1 quota, H-1B1 cap eligibility, and H-1B1 petitions, please visit the USCIS website or the Consular sections of the Department of State website for Chile or Singapore.
E-3
The E-3 program permits temporary nonimmigrant employment of foreign employees from Australia in specialty occupations in the United States. Current laws limit the annual issuance of E-3 visas to 10,500 Australian citizens seeking temporary employment in specialty occupations. Consult the USCIS or Consular sections of the Department of State’s website for Australia for information regarding the E-3 quota, E-3 cap qualifications, and E-3 petitions.
How and When to Apply
Before filing a petition with U.S. Citizenship and US Immigration Services or obtaining a visa through the Department of State, employers must submit a Labour Condition Application (LCA/Form ETA-9035E/9035) to the Department of Labour attesting compliance with the H-1B, H-1B1, or E-3 program’s requirements.
LCAs cannot be submitted more than six months before the start date of the employment period.
LCAs must be submitted electronically through the Department's FLAG System.
Employers with physical disabilities and those without Internet access cannot electronically file Form ETA-9035E through the FLAG System, the two exceptions to the electronic filing requirement. Before submitting an LCA by mail on Form ETA-9035, an employer must appeal the Administrator of OFLC for special permission.
What to Submit to the Labour Department
The H-1B, H-1B1, and E-3 programs are predicated on documentation.
Unless permitted to file by mail, the employer submits the Labour Condition Application (Form ETA-9035E [electronic]) to the Department through the FLAG System.
The employer certifies that the information entered on the LCA is true and accurate. The employer bears the burden of establishing the veracity of the information contained on the LCA.
