n light of the recent U.S. Citizenship and Immigration Services (USCIS) policy update regarding the Employment Authorization Document (EAD) under “compelling circumstances”, we feel it is essential to provide further clarification, specifically focusing on tangible examples of these compelling circumstances. We aim to provide an overview of the potential advantages, thereby enabling employers and employees to navigate these policy changes more effectively.
An Overview of Compelling Circumstances EAD: The Compelling Circumstances EAD is a discretionary relief that allows certain noncitizens facing compelling circumstances to work for any U.S. employer. It is designed as a stopgap measure to aid individuals who are on the path to lawful permanent resident status, but are prevented from abruptly leaving the U.S. due to reasons such as a lack of visa availability based on their priority date, country of chargeability, and preference category.
Updated Eligibility Criteria: The new USCIS guidance lays out specific eligibility criteria for individuals who wish to apply for an initial EAD based on compelling circumstances. Some key requirements include:
- The applicant should be the principal beneficiary of an approved Form I-140 (Immigrant Petition for Alien Workers) in the 1st, 2nd, or 3rd employment-based preference category.
- The applicant must be in a 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 applicant must not have filed an adjustment of status application.
- An immigrant visa is not available to the applicant based on their priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin.
- The applicant and their dependents must not have been convicted of a felony or two or more misdemeanors.
Furthermore, the USCIS must, at its discretion, determine that the principal applicant demonstrates compelling circumstances justifying the issuance of employment authorization.
Illustrative Examples of Compelling Circumstances: The USCIS has outlined some situations that could be considered as compelling circumstances. Let’s dive a bit deeper into these:
- Serious Illness or Disability: If an applicant or a member of their immediate family has been diagnosed with a serious illness or disability, it could warrant a compelling circumstance. This could be a situation where the specialized medical treatment is available predominantly in the U.S., and leaving the country could be detrimental to the individual’s health.
- Employer Dispute or Retaliation: Disputes with an employer or situations of retaliation could potentially be seen as compelling circumstances. For instance, if the applicant has been mistreated, discriminated against, or wrongfully dismissed, such a circumstance could be deemed compelling.
- Other Substantial Harm to the Applicant: This could include situations where the applicant or their family would face extreme hardship if forced to return to their home country, for example, due to political unrest, persecution, or a drastic reduction in the standard of living.
- Significant Disruption to the Employer: If the applicant’s sudden departure would cause significant disruption to their employer, such as on a critical project or due to their unique skills, this may be viewed as a compelling circumstance.
As an example of evidence to prove these circumstances, an applicant who has lived in the U.S. for an extensive period could present school or higher education enrollment records, mortgage records, or long-term lease agreements. In a situation where a job loss would force a family to sell their home at a loss or uproot their children from school, these documents can support a finding of compelling circumstances.
Impact on Family Members: The new policy update extends eligibility for a compelling circumstances EAD to the spouse and children of the principal applicant, provided they fulfill certain conditions. Notably, they should be in valid nonimmigrant status at the time of filing the application.
Takeaway: The changes to the Compelling Circumstances EAD policy provide a lifeline to noncitizens who find themselves in challenging situations. However, these circumstances are often complex and nuanced, requiring careful analysis and thorough understanding. It is important to know that this option exists for this that qualify, should they have to rely on it.
For further information on how to apply for an EAD based on compelling circumstances, please reach out to our office.