New USCIS Guidance: Eligibility for Employment Authorization Documents Based on Compelling Circumstances
09/14/2023
Immigration Insights
The U.S. Citizenship and Immigration Services (USCIS) recently released policy guidance clarifying the eligibility criteria for initial and renewal applications for Employment Authorization Documents (EADs) in compelling circumstances.
This new guidance aims to clarify the process and requirements of obtaining an EAD based on compelling circumstances.
In this article, we will explore who is eligible for this type of EAD, define “compelling circumstances,” provide examples, and discuss the implications of this new guidance.
Understanding Eligibility for EADs Based on Compelling Circumstances
To be eligible for an EAD based on compelling circumstances, you must meet specific criteria outlined by the USCIS.
These criteria include:
| Requirement | Description |
|---|---|
| Approved Form I-140 | Form I-140, an Immigrant Petition for Alien Workers, establishes the individual's eligibility for employment-based immigration. |
| Valid Nonimmigrant Status | You must be in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or in an authorized grace period when filing Form I-765, Application for Employment Authorization. |
| No Adjustment of Status Application | You should not have filed an adjustment of status application, which refers to petitioning to change from nonimmigrant to immigrant status. |
| Unavailable Immigrant Visa | The USCIS considers an immigrant visa unavailable if your priority date (as determined by the U.S. Department of State's Visa Bulletin) does not align with the relevant Final Action Date at the time of filing Form I-765. |
| Biometrics and Criminal Record | You and your dependents must provide biometrics as required, and you should not have a felony conviction or two or more misdemeanors. |
| Demonstration of Compelling Circumstances | Ultimately, the USCIS exercises discretion in determining if you presented compelling circumstances that justify the issuance of an employment authorization document. |
Defining Compelling Circumstances
Compelling circumstances refer to situations that present significant challenges or hardships for the principal applicant. While the USCIS provides a non-exhaustive list of examples, these circumstances can include serious illness or disability, employer disputes or retaliation, substantial harm to the applicant, or significant disruption to the employer.
The USCIS recognizes that individuals on the path to obtaining lawful permanent residence may encounter unique challenges that could force them to stop working and leave the United States. The compelling circumstances-based EAD serves as a temporary measure to address these difficult situations and provide support during the immigration process.
Examples of Compelling Circumstances
To better understand what compelling circumstances entail, let’s explore a few examples:
- Serious Illness or Disability: If you have a dependent family member with a severe illness or disability requiring ongoing medical care and treatment, employment authorization becomes crucial to support the family’s financial stability and ensure access to necessary healthcare services.
- Employer Dispute or Retaliation: Individuals may find themselves in a dispute with their employer, facing unfair treatment or retaliation due to their immigration status. An EAD based on compelling circumstances can allow these individuals to seek alternative employment and protect their rights.
- Substantial Harm to the Applicant: Substantial harm can include situations where the principal applicant faces immediate danger or threats in their home country. In these cases, an EAD allows them to continue working and remain in the United States as they seek protection or explore other avenues for immigration relief.
- Significant Disruption to the Employer: An employer may experience unforeseen circumstances that disrupt their operations, such as bankruptcy or downsizing, which can result in job loss. In these cases, the EAD provides temporary work authorization so you can maintain financial stability while you seek new employment opportunities.
Evidence to Demonstrate Compelling Circumstances
When applying for an EAD based on compelling circumstances, you must submit evidence that supports your claim. The USCIS guidance provides a range of possible evidence, including:
- School or higher education enrollment records
- Mortgage records
- Long-term lease records
- Medical records
- Employer dispute documentation
- Police reports
- Affidavits from witnesses
- Documentation of harm or threats
Compiling a comprehensive body of evidence demonstrating compelling circumstances is essential. This evidence will help the USCIS evaluate your situation and make an informed decision on their EAD application.
Implications for Applicants
The USCIS guidance on compelling circumstances EADs clarifies the eligibility requirements and provides a framework for you to seek employment authorization despite challenging circumstances.
If you meet the eligibility criteria and demonstrate compelling circumstances, you can apply for an initial or renewal EAD. This authorization allows you to legally work in the United States, supporting your financial stability and providing a sense of security during the immigration process.
We Can Help with Your EAD Application
If you encounter compelling circumstances threatening your immigration status or ability to support yourself, contact Scott D. Pollock & Associates, P.C.
Our experienced immigration attorneys can evaluate your situation, gather evidence, and apply for an initial or renewal EAD based on the new USCIS guidance. Fill out our online form or call us at 312-444-1940.
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