Unveiling the Updated USCIS Policy Guidance: An Overview of the Eligibility Criteria for EADs under Compelling Circumstances

Today, the U.S. Citizenship and Immigration Services (USCIS) announced its latest policy guidance pertaining to the eligibility criteria for the initial and renewal applications of employment authorization documents (EADs) under compelling circumstances. This development is grounded in existing regulatory requirements, as stipulated at 8 CFR 204.5(p).

This updated policy guidance comes as an attempt to streamline and clarify the process for prospective applicants. Let’s delve into the specifics.

For an applicant to qualify for an initial EAD under compelling circumstances, certain eligibility requirements must be fulfilled:

1. The principal applicant should be the primary beneficiary of an approved Form I-140 (Immigrant Petition for Alien Workers). This should be in either the 1st, 2nd, or 3rd employment-based preference category.

2. At the time of filing Form I-765 (Application for Employment Authorization), 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.

3. The principal applicant should not have filed an adjustment of status application.

4. An immigrant visa should be unavailable to the principal applicant, based on their priority date in accordance with the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin at the time of filing Form I-765.

5. The applicant and their dependents are required to provide biometrics.

6. Neither the applicant nor their dependents should have been convicted of a felony or two or more misdemeanors.

7. Lastly, the USCIS must determine, as a matter of discretion, that the principal applicant exhibits compelling circumstances that warrant the issuance of employment authorization.

The guidance touches upon compelling circumstances for both principal applicants and their dependents. It further lists various situations that may constitute compelling circumstances, such as a serious illness or disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer.

The USCIS has also provided details regarding the type of evidence an applicant can submit to demonstrate these compelling circumstances. For instance, an applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area, who has resided in the United States for an extended period, could present evidence like school or higher education enrollment records, mortgage records, or long-term lease records to substantiate their case of compelling circumstances. Situations such as a family potentially being forced to sell their home at a loss, pull their children out of school, and relocate to their home country due to job loss could also be considered compelling circumstances.

To know more about these compelling circumstances EADs, please refer to the policy alert. Additionally, for insights into the options for Nonimmigrant Workers after the termination of employment, do refer to our resource that covers more evidence on options for maintaining a period of authorized stay in the United States.

USCIS LINK: https://www.uscis.gov/newsroom/alerts/uscis-provides-guidance-on-employment-authorization-documents-based-on-compelling-circumstances