I-140 EAD Rule – Big bluff by the administration

DHS’s proposed rule to amend its regulations related to EB-1, EB-2, and EB-3 immigrant and non-immigrant visa programs is scheduled to be published in the Federal Register tomorrow. We anticipate a comment period of about 30 days, and the effective date of the rule will likely be in April 2016.

Here are some highlights from the rule:

1. Beneficiaries with I-140 approvals in E-3, H-1B, O-1 or L1 visa status will be eligible for an Employment Authorization Document (EAD) if there are compelling circumstances warranting issuance of the EAD. Compelling circumstances include serious illness or disability of main applicant or dependent, geographic relocation causes undue burden to the Applicant; employer retaliation; the Beneficiary’s inability to maintain the nonimmigrant status; or significant disruption of the employer.

2. If an I-140 beneficiary meets the compelling circumstances requirement, his family members will also be eligible for the EAD.

Here are some downsides to the new rule:

1. Employment authorization only good for one year

2. I-140 Beneficiary can only extend the EAD if they are within one year of the current priority date.

3. No mention of advance parole that will allow the person to travel outside the US

4. When the I-140 Beneficiary joins a new company with the EAD, immigrant petition still needs to be approved, and it is unclear if the I-140 requires labor certification or not in the regulations

The rule is a disappointment to say the least. It took one year for the government to formulate a rule that will have very little impact on highly skilled international workers and their families who are languishing in queues waiting for employment-based green cards.


Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.