USCIS Provides Guidance on Employment Authorization Documents Based on Compelling Circumstances
U.S. Citizenship and Immigration Services today released policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances based on existing regulatory requirements at 8 CFR 204.5(p).
For an applicant to be eligible for an initial EAD based on compelling circumstances, they must meet the following eligibility requirements:
- The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the 1st, 2nd, or 3rd employment-based preference category;
- The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765, Application for Employment Authorization;
- The principal applicant has not filed an adjustment of status application;
- An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765;
- The applicant and their dependents provide biometrics as required;
- The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
- USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.
The guidance covers compelling circumstances for principal applicants and their dependents and provides a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer.
The guidance also provides details on evidence an applicant could submit to demonstrate one of these compelling circumstances. For example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area, who has lived in the United States for a significant amount of time, could submit evidence such as school or higher education enrollment records, mortgage records, or long-term lease records to support a potential finding of compelling circumstances. Compelling circumstances could include, if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull their children out of school, and relocate to their home country.
Highlights from the Compelling Circumstances Guidance
While the regulation does not define compelling circumstances or define the situations that could trigger them, this provision is generally meant to address situations in which the nonimmigrant is no longer able to continue employment with their employer and faces serious harm constituting compelling circumstances beyond that which is normally associated with job loss.
Compelling circumstances are situations outside a principal applicant’s control that adversely affect the principal applicant’s ability to continue employment for the petitioning employer and justify the issuance of an EAD.
The following non-exhaustive examples illustrate how certain situations could lead to a finding that compelling circumstances exist.
Serious Illness and Disability
A principal applicant or their dependent faces a serious illness or disability that substantially changes employment circumstances, such as requiring them to move to a different geographic area for their or a dependent’s treatment, or the illness or disability otherwise reduces or adversely affects the principal applicant’s ability to continue their previously approved employment.
Leaving the United States would likely result in additional medical issues and interrupt the individual’s treatment plan and prognosis. A move to another part of the country to ensure proper medical care is just one example of compelling circumstances resulting from a serious illness or disability of the principal applicant or their family member.
Applicants in this situation or another situation involving serious illness and disability should provide an explanation supported by evidence such as medical records and any relevant information relating to their inability to continue in their nonimmigrant worker status.
Employer Dispute or Retaliation
A principal applicant is involved in a dispute regarding their employer's alleged illegal or other forms of abusive conduct. The dispute may take the form of a whistleblower action, litigation, or other documented dispute. If the employer retaliated against the principal applicant, the applicant should submit evidence to substantiate the claim of employer retaliation, as evidence of retaliation may support a finding that compelling circumstances exist. Employer retaliation is not limited to a termination of employment. The retaliation may take any form that adversely affects the principal applicant’s ability to continue employment, including harassment.
Applicants involved in an employer dispute or claiming employer retaliation should provide an explanation supported by evidence such as complaint details, correspondence with the employer, or legal filings.
Other Substantial Harm to the Applicant
The principal applicant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and would suffer substantial harm as a result. This harm may be financial or may be due to an inability to return to their home country due to conditions there.
Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss. Job loss may be sufficient to establish financial hardship depending on the individual circumstances. For example, the loss of health insurance may rise to this level for a principal applicant or their dependents facing extended illness or requiring extensive medical treatment.
Applicants should provide an explanation supported by evidence such as financial records and bona fide cost estimates demonstrating the inherent financial hardship facing the applicant if made to depart the United States, coupled with specialty needs of the applicant or family members. Evidence in this example could also include the applicant’s priority date, as well as other factors such as school or higher education enrollment records, mortgage records, long-term lease records, or documentation regarding home country conditions, as applicable.
Significant Disruption to the Employer
Compelling circumstances need not involve the termination of the principal applicant. A principal applicant who is unexpectedly unable to timely extend or change status to continue employment with the employer and has no other basis to continue that employment may be eligible for a compelling circumstances-based EAD if the principal applicant's departure would cause the employer substantial disruption.
Applicants should provide an explanation supported by evidence from their employer that demonstrates that, due to the principal applicant’s knowledge or experience, their loss would negatively impact projects and result in significant monetary loss or other disruption to the employer.
Approval of an application for employment authorization based on compelling circumstances requires that the principal applicant is facing compelling circumstances and that they are unable to continue employment with the petitioning employer, and that due to the compelling circumstances, the result to the applicant is harm beyond that which is normally associated with job loss.
For example, reaching the maximum statutory or regulatory period of allowed nonimmigrant status does not, without compounding factors, constitute compelling circumstances. An officer may consider this factor in determining whether the applicant merits a favorable exercise of discretion.
Likewise, USCIS generally does not consider unemployment or job loss, in and of itself, to be a compelling circumstance unless the principal applicant can show additional circumstances that compound the hardship ordinarily associated with job loss.
As an example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area who has lived in the United States for a considerable period of time, and has school-aged children and a mortgage, may face compelling circumstances if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull the children out of school, and relocate to their home country. Note that not all of these elements (lengthy time in the United States, mortgage, and school-age children) are necessary for a case-by-case finding of compelling circumstances based on substantial harm to the applicant.
USCIS may grant initial employment authorization based on compelling circumstances for up to 1 year.
D. Spouse and Children
The spouse and children of a nonimmigrant who receives a compelling circumstances-based EAD are also eligible to apply for a compelling circumstances-based EAD if the qualifying relationship exists both at the time of filing and adjudication. The principal nonimmigrant’s EAD must be valid for the spouse and children to receive their own.
A spouse or child may file an application for a compelling circumstances-based EAD concurrently with the principal nonimmigrant’s application, but USCIS may not approve the spouse or child’s application before approving the principal nonimmigrant’s application. Each dependent must establish eligibility and satisfy all filing requirements. The validity period of a spouse or child’s compelling circumstances-based EAD may not exceed the principal nonimmigrant’s approval period.
A spouse or child who files an application for a compelling circumstances-based EAD must provide biometrics and must not have been convicted of a felony or two or more misdemeanors.
E. Renewal Applications
EADs based on compelling circumstances may be renewed in 1-year increments. A renewal application must be filed before the expiration of the previous EAD. Compelling circumstances-based EADs are not eligible for automatic extensions.
USCIS may approve a renewal application for a compelling circumstances-based EAD if the principal applicant continues to have a Form I-140 approved on their behalf, and either:
Compelling circumstances exist, and an immigrant visa is still not available for issuance based on the applicant’s priority date according to the relevant Final Action Date in the DOS’s Visa Bulletin in effect at the time the applicant files the renewal application. The compelling circumstances at the time of the renewal application may be different from the initial compelling circumstances shown; or
The difference between the applicant’s priority date and the Final Action Date for the applicant’s preference category and country of chargeability is 1 year or less according to the DOS Visa Bulletin in effect on the date the applicant filed the renewal application. In other words, under this option, the applicant’s priority date cannot be more than 1 year earlier or 1 year later than the DOS cut-off date in the Visa Bulletin applicable to the applicant’s preference category and country of chargeability in effect on the date the applicant filed the renewal application.
The spouse and children of a principal applicant may apply to renew employment authorization if the qualifying relationship exists both at the time of filing and adjudication, and the principal applicant’s renewal application has been approved. The spouse and children may apply concurrently with the principal applicant, but their applications cannot be approved until after the principal applicant’s application has been approved.
Neither the principal applicant nor their spouse or children need to be in a valid nonimmigrant status when seeking renewal of employment authorization based on compelling circumstances.
If approved, a renewal of the compelling circumstances-based EAD is valid for 1 year. The validity period of a spouse or child’s compelling circumstances-based EAD may not exceed the principal applicant’s approval period.
F. Period of Authorized Stay
USCIS considers an applicant with a valid EAD based on compelling circumstances to be in a period of authorized stay by the Secretary of Homeland Security. In addition, USCIS considers the time during which the EAD application was pending to be a period of authorized stay. Therefore, 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.
A noncitizen who departs the United States to apply for a nonimmigrant or immigrant visa at a consular post abroad while working using the compelling circumstances-based employment authorization does not trigger the unlawful presence grounds of inadmissibility, as long as the noncitizen is not subject to those grounds of inadmissibility from other circumstances.
As noted above, a period of authorized stay is distinguishable from nonimmigrant status. Individuals who are in a period of authorized stay but are not in a nonimmigrant status may therefore, depending on the facts, be ineligible for a change or adjustment of status for failing to maintain a lawful status. However, individuals in an authorized period of stay do not accrue unlawful presence, so they may subsequently leave the United States to apply for an immigrant or nonimmigrant visa at a consular post abroad, without triggering the unlawful presence grounds of inadmissibility (as long as they have not otherwise accrued periods of unlawful presence).