The U.S. Citizenship and Immigration Services has issued policy guidance regarding the criteria for eligibility in applying for initial and renewal employment authorization documents (EADs) under compelling circumstances, as outlined in the existing regulatory requirements at 8 CFR 204.5(p).
To qualify for an initial EAD based on compelling circumstances, applicants must satisfy the following eligibility criteria:
- The principal applicant must be the primary beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, falling within the 1st, 2nd, or 3rd employment-based preference category.
- The principal applicant should be in valid nonimmigrant status (E-3, H-1B, H-1B1, O-1, or L-1) or in an authorized grace period when filing Form I-765, Application for Employment Authorization.
- The principal applicant must have yet to file an adjustment of status application.
- The priority date of the principal applicant does not allow for the availability of an immigrant visa, as per the relevant Final Action Date mentioned in the U.S. Department of State’s Visa Bulletin at the time of filing Form I-765.
- Both the applicant and their dependents are required to provide biometrics.
- Neither the applicant nor their dependents has been convicted of a felony or two or more misdemeanors.
- USCIS, at its discretion, determines that the principal applicant demonstrates compelling circumstances justifying the issuance of employment authorization.
The guidance encompasses compelling circumstances for principal applicants and their dependents and includes a non-exhaustive list of situations that could establish compelling circumstances. Such events have severe illness or disability, employer disputes or retaliation, significant harm to the applicant, or substantial disruption to the employer.
Additionally, the guidance provides specific information regarding the evidence an applicant can submit to demonstrate the presence of compelling circumstances. For instance, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area, who has resided in the United States for a considerable period, may present evidence such as enrollment records from educational institutions, mortgage records, or long-term lease agreements to support a potential finding of compelling circumstances. These circumstances could include situations where the family may be compelled to sell their home at a loss, withdraw their children from school, and relocate to their home country due to job loss.
Please see the policy alert for more information about these compelling circumstances EADs.