USCIS Guidelines for Employment Authorization in Compelling Circumstances (2023)

The U.S. Citizenship and Immigration Services (USCIS) has recently unveiled new policy guidance outlining the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances. These guidelines provide valuable information to individuals facing unique situations that may warrant the issuance of an EAD.

Eligibility Requirements for Initial EAD Based on Compelling Circumstances

To qualify for an initial EAD based on compelling circumstances, applicants must meet the following criteria:

1. Approved Form I-140: The principal applicant must be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, falling within the 1st, 2nd, or 3rd employment-based preference category.
2. Nonimmigrant Status: The principal applicant should be in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or be within the authorized grace period when submitting Form I-765, Application for Employment Authorization.
3. No Adjustment of Status Application: The principal applicant must not have filed an adjustment of status application.
4. Unavailable Immigrant Visa: The priority date of the principal applicant, as per the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin at the time of filing Form I-765, should indicate that an immigrant visa is not available.
5. Biometrics Requirement: Both the applicant and their dependents need to provide the necessary biometric information as required by USCIS.
6. Criminal Convictions: Neither the applicant nor their dependents should have been convicted of a felony or two or more misdemeanors.
7. Demonstrating Compelling Circumstances: USCIS will exercise discretion to determine whether the principal applicant presents compelling circumstances justifying the issuance of employment authorization.

Understanding Compelling Circumstances

The USCIS guidance provides an extensive but non-exhaustive list of compelling circumstances that may lead to the issuance of an EAD. Examples of such circumstances include:

1. Serious Illness or Disability: When the principal applicant or their dependents face significant health challenges requiring ongoing medical attention.
2. Employer Dispute or Retaliation: In cases where the principal applicant experiences conflicts or retaliatory actions from their employer.
3. Substantial Harm to the Applicant: Situations involving threats to personal safety, harassment, or abuse that create a compelling need for employment authorization.
4. Significant Employer Disruption: Instances where the employer undergoes substantial disruptions such as bankruptcy, closure, or other unforeseen events.

Supporting Documentation for Compelling Circumstances

To strengthen the case for compelling circumstances, applicants can submit appropriate evidence. For instance:

1. Approved Immigrant Visa Petition: If the principal applicant holds an approved immigrant visa petition in an oversubscribed visa category or chargeability area, documents like school or higher education enrollment records, mortgage records, or long-term lease agreements can help substantiate the claim.
2. Job Loss Impact: If the family faces job loss, resulting in potential consequences such as selling their home at a loss, withdrawing children from school, or relocating to their home country, supporting evidence like termination notices, financial statements, or employment records can be submitted.

Source: U.S. Citizenship and Immigration Services (USCIS)

Release Date: 06/14/2023