Meeting the “Compelling Circumstances” Requirement in an EAD Application

Today, the U.S. Citizenship and Immigration Services (USCIS) has unveiled new policy guidance outlining the eligibility requirements for initiating and renewing applications for Employment Authorization Documents (EADs) in what are considered ‘compelling circumstances’, pursuant to existing regulatory obligations under 8 CFR 204.5(p).

In order for an individual to qualify for an initial EAD under compelling circumstances, they must satisfy the following criteria:

• They should be the primary beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, under the 1st, 2nd, or 3rd employment-based preference categories.
• At the time of filing Form I-765, Application for Employment Authorization, the individual should hold valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or be within an authorized grace period.
• They should not have filed an adjustment of status application.
• As per the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765, an immigrant visa should not be available to the applicant.
• Both the applicant and their dependents are able to provide requird biometrics.
• The applicant and their dependents should not have felony convictions or two or more misdemeanors.

In addition to the above, USCIS, at its discretion, must find that the primary applicant can show compelling circumstances that warrant issuing employment authorization.

The policy guidance also elaborates on what are considered compelling circumstances for both principal applicants and their dependents. These circumstances include, but are not limited to

• serious illness or disability,
• dispute with an employer or retaliation,
• significant harm to the applicant, or
• substantial disruption to the employer.

To illustrate compelling circumstances, an applicant can submit evidence such as enrollment records from schools or higher education institutions, mortgage documents, or long-term lease agreements. These would be particularly relevant if the principal applicant has an approved immigrant visa petition in an oversubscribed visa category and has resided in the United States for an extended period. Compelling circumstances might also include situations where a job loss could force a family to sell their home at a loss, disrupt their children’s education, or necessitate a return to their home country.

For a more detailed explanation of these compelling circumstances EADs, please refer to the policy update.

Original USCIS guidance:

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.

For more information about these compelling circumstances EADs, please see the policy alert. Please also see our resource on Options for Nonimmigrant Workers Following Termination of Employment, for more evidence on options for maintaining a period of authorized stay in the United States. Visit the Policy Manual Feedback page to provide feedback on this update.

USCIS June 2023

Original Policy Alert PDF published June 14th, 2023 by USCIS: