USCIS Provides Guidance on Employment Authorization Documents Based on Compelling Circumstances

The U.S. Citizenship and Immigration Services (USCIS) recently unveiled policy guidance concerning the eligibility criteria for initial and renewal applications for Employment Authorization Documents (EADs) in cases involving compelling circumstances. The guidance clarifies the existing regulatory requirements under 8 CFR 204.5(p).

For an applicant to be eligible for an EAD based on compelling circumstances, several prerequisites must be met:

• 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.

Applicants may strengthen their claims of compelling circumstances by providing a range of evidence. For example, a primary applicant who has an approved immigrant visa petition in a highly subscribed visa category, and has resided in the United States for a considerable time, might choose to present proof such as records of school or university enrollment, mortgage documents, or long-term lease agreements.

Furthermore, compelling circumstances may also include situations where a family, due to a loss of employment, faces the prospect of selling their home at a loss, removing their children from school, and moving back to their home country. Such circumstances may highlight the seriousness and scope of the situations considered under this policy.

The recent policy guidance issued by USCIS clarifies a much-needed option for certain nonimmigrants facing challenging situations. It enables them to maintain their employment and legal status within the United States. However, it is important to acknowledge the discretionary nature of USCIS’s decision-making process in such cases and the significance of thoroughly establishing the existence of compelling circumstances, supported by relevant and persuasive evidence. Despite the inherent challenges involved in this process, USCIS’s clarification regarding this pathway is a highly welcomed development.

Read USCIS’s Policy Alert (PDF)