In 2017, United States Citizenship and Immigration Services (USCIS) established a policy that allows certain nonimmigrants on the pathway to permanent residence to obtain employment authorization based on compelling circumstances. This discretionary measure aims to address situations where nonimmigrants are unable to continue employment with their sponsoring employer and face significant harm beyond the typical job loss consequences. In this article, we will explore the eligibility requirements, examples of compelling circumstances, validity periods, and the impact on spouses and children.
To be eligible for an Employment Authorization Document (EAD) based on compelling circumstances, the applicant must meet the following criteria:
- The principal applicant must be the beneficiary of an approved Immigrant Petition for Alien Workers (Form I-140) in the 1st, 2nd, or 3rd employment-based preference category.
- The principal applicant must be in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, or within the authorized grace period when filing the Application for Employment Authorization (Form I-765).
- The principal applicant must not have filed an Application to Register Permanent Residence or Adjust Status (Form I-485).
- An immigrant visa must not be available based on the applicant's priority date according to the relevant Final Action Date in the U.S. Department of State's Visa Bulletin at the time of filing Form I-765.
- The applicant and their dependents must provide biometrics as required.
- The applicant and their dependents must not have been convicted of a felony or two or more misdemeanors.
- USCIS must determine, based on discretion, that the principal applicant demonstrates compelling circumstances justifying the issuance of employment authorization.
Examples of Compelling Circumstances
The USCIS regulation does not provide an exhaustive definition of compelling circumstances, granting officers the authority to evaluate each case individually. However, the following examples illustrate situations that could lead to a finding of compelling circumstances:
- Serious Illness and Disability: If a principal applicant or their dependent faces a serious illness or disability that substantially affects their employment circumstances, such as requiring relocation for treatment or hindering their ability to continue their approved employment, compelling circumstances may exist.
- Employer Dispute or Retaliation: If a principal applicant is involved in a documented dispute or claims of employer retaliation, such as a whistleblower action or litigation, and can substantiate the claim, it may constitute compelling circumstances.
- Other Substantial Harm to the Applicant: If the principal applicant is unable to extend or maintain their nonimmigrant status, or obtain an alternative nonimmigrant status and would suffer significant harm as a result, compelling circumstances may be established. This harm could be financial or due to conditions in their home country.
- Significant Disruption to the Employer: Compelling circumstances may arise when a principal applicant unexpectedly loses the ability to extend or change their status, and their departure would cause substantial disruption to the employer, resulting in significant monetary loss or project delays.
Validity and Renewal
USCIS may grant initial employment authorization based on compelling circumstances for up to one year. The principal applicant's spouse and children are also eligible to apply for compelling circumstances-based EADs if the qualifying relationship exists at the time of filing and adjudication.
Renewal applications for compelling circumstances-based EADs can be filed in one-year increments before the expiration of the previous EAD. USCIS may approve a renewal application if the principal applicant continues to have an approved Form I-140 and compelling circumstances persist. Spouses and children can apply for renewal at the same time as the main applicant, but their approval period can not be longer than the main applicant's.
Period of Authorized Stay and Departure
The applicant is considered to be in an authorized stay period by the Secretary of Homeland Security while the EAD is still valid and a timely, non-frivolous application is being processed. This means that the applicant generally does not accrue unlawful presence during this time.
If a noncitizen with compelling circumstances-based employment authorization leaves the United States to apply for a nonimmigrant or immigrant visa at a consular post abroad, it does not trigger the grounds of inadmissibility for unlawful presence, provided they are not subject to other inadmissibility grounds.
The USCIS policy on employment authorization based on compelling circumstances provides a lifeline for nonimmigrants on the pathway to permanent residence who face extraordinary challenges preventing them from continuing their employment with their sponsoring employer. By allowing them to remain in the United States and continue for an authorized period of stay, this policy addresses situations of serious illness, employer disputes, financial hardship, and significant disruption to the employer. It also considers the impact on spouses and children, allowing them to apply for their own employment authorization. While USCIS retains discretion in determining compelling circumstances, this policy ensures that nonimmigrants facing exceptional circumstances are given the opportunity to work and maintain stability during their immigration process.
This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to call us at 214-494-8033, text us using our chat box, or complete our contact form.