Updated Employment Authorization Guidance for Compelling Circumstances
USCIS has published new guidance on US work authorization rules in relation to compelling circumstances.
The revision potentially allows individuals facing adverse situations, such as termination from employment or visa backlogs, to apply for an employment authorization document (EAD) to continue working lawfully in the United States.
The changes will be of particular interest and relevance to H1B workers, many of whom are facing job losses due to challenges in the US tech sector.
New rules on EAD & compelling circumstances
The USCIS guidance clarifies the existing regulatory requirements, at 8 C.F.R §204.5(p), that cover compelling circumstances for both initial and renewal employment authorization document applications.
Specifically, an applicant will only be eligible for an initial EAD based on compelling circumstances if certain requirements apply. To be eligible for an EAD based on compelling circumstances:
- the applicant must be the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker in the 1st, 2nd, or 3rd employment-based preference category;
- they must be in a valid specific nonimmigrant status of either E-3, H-1B, H-1B1, O-1, or L-1, or authorized grace period when the applicant files Form I-765, Application for Employment Authorization;
- they must not have filed an adjustment of status application.
Additionally, the applicant’s priority date cannot align with an available immigrant visa based on the U.S. Department of State’s Visa Bulletin.
The applicant, and any dependents, must not have not been convicted of a felony or two or more misdemeanors, adn they will be required to provide their biometrics as required.
The applicant must also submit evidence to prove they are facing qualifying compelling circumstances that justify the issuance of employment authorization.
What is a compelling circumstances EAD?
An EAD is a requirement for certain foreign national workers, including H1B workers, as proof of their permission to undertake work while in the US.
Compelling circumstances are situations outside an applicant’s control that adversely affect the applicant’s ability to continue employment for the petitioning employer and justify the issuance of an EAD.
The guidance puts forward a non-exhaustive list of circumstances that could potentially qualify as compelling circumstances for principal applicants and their dependents, including:
- serious illness and disability
- employer dispute and retaliation
- other substantial harm to the applicant
- significant disruption to the employer.
How to apply for an EAD under compelling circumstances
Applicants must complete and file Form I-765, the Application for Employment Authorization, and provide evidence that proves their circumstances meet the compelling circumstances criteria, such as documentation to show the impact of job loss and forced relocation on the applicant and their dependents.
Once the application is submitted, USCIS will review based on the prevailing compelling circumstances guidance. Adjudication of these EADs involves assessing eligibility, reviewing evidence, and making a discretionary decision.
Need assistance?
As US immigration specialists, we provide expert advice and support to employers and workers applying under the H-1B route, and all other US work visa categories. For guidance on H-1B petitions, contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
