Ask Away! FAQs Asked & Answered

The following inquiries and responses are for informational purposes only. This does not constitute as legal advice. Please note that the responses are current as of the noted dates.

February 1, 2024:

In the event of unexpected unemployment for an individual holding an H1B visa with an approved I-140, what is the procedure for obtaining an Employment Authorization Document (EAD) based on compelling circumstances?

The procedure to apply for an EAD based on compelling circumstances, includes the filing for Form I-765, Application for Employment Authorization along with the appropriate filing fees and supporting evidence which is outlined here under “How to Apply.”

Regarding what qualifies as compelling circumstances, is discretionary. USCIS has stated that the following are circumstances that may qualify:

• Medical documentation to show you or your dependent are facing a serious illness or disability;
• Evidence that your employer has retaliated against you;
• Evidence of other substantial harm to you or your dependents, which could include your priority date, school or higher education enrollment records, mortgage records, long-term lease records, or documentation regarding home country conditions, as applicable;
• Evidence of significant disruption to the employer; or
• Other evidence that demonstrates you are experiencing compelling circumstances.

USCIS considers an applicant with a valid EAD based on compelling circumstances and the time during which the EAD application is pending to be a period of authorized stay. The applicant generally does not accrue unlawful presence during the validity period of the EAD or during the pendency of a timely filed non-frivolous application.

If my company intends to submit an EB1B application next year, and my spouse already holds an approved I-140 in the EB2 category with a priority date of June 2020, is it possible to utilize my spouse's priority date if my EB1B petition is approved?

No, you cannot port your spouse’s priority date. If your spouse was born in a different country than you, you may use the visa bulletin date available for your spouse’s country of birth for your petition. This is called cross-chargeability.

In the process of preparing for an EB1A application, what steps can be taken to meet the criteria related to awards?

This will depend on your industry. The great thing about qualifying for O-1 and EB-1A is that it is ultimately about your area of expertise, your specific profile and your industry. There may be unique experiences that will we can argue qualify as “awards.” Some examples include, but are not limited to:

• Venture Capital & industry funding;
• Involvement in selective incubators, like Y Combinator;
• Industry acknowledgements and recognitions, like Forbes lists;
• Fellowships;
• Research Grants;
• Hackathons (competitive, non-student);
• Selective invitations to conferences;
• Professional association or academic
• Government Agency recognition;
• Recognition for Excellence in Teaching;
• Student awards generally do not qualify.

For steps to be taken to meet these criteria have a plan:

1. Ask yourself to narrow down your area of expertise/specialization into one sentence.
2. Once you’ve done so, conduct research on various industry experts, conferences, grants, competitions, journals, etc.
3. Network & Pitch! Reach out to these major players and get involved. Demonstrate your knowledge in the space and stay in touch with such experts so you can continue to stay apprised of any research or conferences they are speaking at. Show interest in participating and as you build up your portfolio your name in these circles.
4. Apply yourself! Apply for the selective conferences or journals, apply for venture funding, apply for selective incubators, apply for selective fellowships and grants.

Building up an EB-1A profile takes time but with a targeted plan and commitment you can get there!

Is it possible to submit an EB1A or EB-2 NIW application while on F1 OPT, and assuming approval of the I-140, can one transition from F-1 status to either H1B or O-1 visa?

Yes, to both! USCIS has published updated policy guidance which clarifies that students in the US can have immigrant petition applications (which includes EB1As and NIWs) while maintaining their ability to demonstrate the requisite intent in F-1. Every situation is case-specific of course and there are nuances to this however, it is possible. Furthermore, H-1B is a “dual-intent” visa so you can have an approved I-140, demonstrating immigrant intent, while changing status from F-1 to H-1B. O1 visas are not explicitly "dual-intent" like H-1Bs but the DOS FAM (Foreign Affairs Manual) states that "USCIS has determined that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying classification as an O-1 or O-3 dependent. The noncitizen may legitimately come to the United States for a temporary period as an O-1 or O-3 dependent nonimmigrant and depart voluntarily at the end of their authorized stay and, at the same time, lawfully seek to become an LPR of the United States." So filing a change of status from F-1 to O-1 is possible with an approved I-140.

Apart from citation counts and recommendation letters, what are some ways to show "original contributions of major significance" for EB1 Criterion 5?

The focus of this criterion is two parts: original contributions and of major significance. Take a look at your career, your portfolio and identify anything you originally contributed to. This can include, but is not limited to, patents, development of products for your employer, research grants, conference presentations, business development, sales, licensed technology, and so much more. The next step is to identify if these original contributions are of major significance. You can demonstrate major significance by showing sales, reach, the degree of influence within the field, the number and kind of attendees at a conference presentation, how is it being used in the field, how the employer is using the product and more through evidence including contracts, publications, press coverage, letters, evidence of others, including clients, benefiting and so much more.

Book a consult today or reach out to info@crossingfrontiers.ca if you have any questions!

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