If you have heard that USCIS issues employment authorization documents (EADs) based on compelling circumstances, you may be wondering if you qualify. In this blog post, we will explain eligibility for these EADs and how USCIS defines compelling circumstances.
USCIS issues EADs based on compelling circumstances to help foreign workers who are employed in the US and facing particularly difficult situations. These EADs are valid for up to one year. In order to be eligible for an initial EAD, you must meet each of the following criteria:
- You are the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the first, second, or third employment-based preference category;
- You are in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when you file Form I-765, Application for Employment Authorization;
- You have not filed an adjustment of status application;
- An immigrant visa is not available to you based on your priority date, according to the relevant Final Action Date on the Department of State Visa Bulletin that is in effect when you file Form I-765;
- You are a spouse or child of the foreign worker and provide biometrics if required;
- You are a spouse or child of the foreign worker and have not been convicted of a felony or two or more misdemeanors; and
- USCIS determines that you demonstrate compelling circumstances that justify issuing an EAD.
If you meet all of these criteria, the next step is to determine if your situation counts as compelling circumstances. On June 14, 2023, USCIS published policy guidance to explain what they consider to be compelling circumstances. In general, compelling circumstances are situations outside of the principal applicant’s control that negatively impact their ability to continue working for their petitioning employer and justify USCIS issuing an EAD. USCIS provides four examples of such situations:
- Serious illness and disability: If a principal applicant or their dependent develops a serious illness or disability, they may need to move to another part of the country to seek treatment, which would substantially change the circumstances of the applicant’s employment. If the applicant and their dependent were forced to leave the US, it would likely interrupt their treatment and cause further harm. Therefore, it would be greatly helpful for USCIS to grant them employment authorization.
- Employer dispute or retaliation: This applies if an applicant exposes their employer’s illegal conduct, and the employer retaliated against the applicant by firing them. USCIS could grant the applicant employment authorization.
- Other substantial harm to the applicant: This applies where the applicant is unable to maintain, extend, or change their status and therefore cannot continue working at their job. For example, the applicant has a chronic illness that they cannot manage without their income and health insurance, and for which they cannot access proper treatment in their home country. USCIS might decide that this individual should receive an EAD based on their compelling circumstances.
- Significant disruption to the employer: If the applicant is unexpectedly unable to maintain, extend, or change their status and their departure would substantially disrupt their employer, they may be eligible for an EAD based on compelling circumstances. For example, the applicant might be working on a critical project that cannot be completed without their continued involvement and presence in the US.
Essentially, in order to get your application for this type of EAD approved, you must prove three key factors:
- You are facing compelling circumstances;
- You are unable to continue employment with the petitioning employer; and
- Due to the compelling circumstances, you will experience harm beyond the harm that normally results from losing a job.
Keep in mind that unemployment, job loss, and reaching the end of your nonimmigrant status are not sufficient reasons to grant a compelling circumstances EAD. You have to also show additional circumstances that compound the hardship of losing your job. For example, an applicant who has lived in the US for a long time and has a mortgage and children enrolled in public school might face compelling circumstances if losing her job and status forced her to sell her home for a loss, pull her children out of school, and move back to her home country.
If you receive a compelling services EAD, your spouse and children can also apply for compelling circumstances EADs if they were related to you at the time that your application was filed and adjudicated. In fact, your spouse and children can apply for these EADs at the same time that you apply; however, USCIS will not approve their EADs before it approves yours. Your spouse and children will need to provide biometrics and not have been convicted of a felony or two or more misdemeanors. Their EADs will not be valid for longer than your EAD is valid.
Applying for a compelling circumstances EAD requires a convincing legal argument and specific documentation. To optimize your chances of approval, contact Attorney Monique Kornfeld.