On June 14, 2023, the United States Citizenship and Immigration Services (USCIS) announced new criteria for individuals to qualify for an initial and renewal Employment Authorization Documents (EADs) based on the individual’s “compelling circumstances” per 8 CFR 204.5(p).
“Compelling circumstances” may include, but are not limited to, the following situations:
- The individual (or their dependent(s)) is facing serious illness and/or disability;
- Employer dispute or retaliation;
- Substantial harm to the individual; or
- Significant disruption to the employer.
Individuals seeking to apply for an initial EAD based on compelling circumstances must meet the below requirements:
- The individual is currently in the United States with a valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or is within their authorized grace period when they file the I-765, Application for Employment Authorization;
- The individual must have received an approved Form I-140, Immigrant Petition for Alien Workers in either the first, second, or third employment-based preference category;
- The individual has not filed an adjustment of status application;
- An immigrant visa is not available for the individual based on the applicant’s priority date according to “Final Action Date” in the US Department of State’s Visa Bulletin when filing the Form I-765;
- The individual and their dependent(s) provide biometrics as required;
- The individual and their dependent(s) must not have been convicted of a felony or two misdemeanors; and,
- USCIS determines, as a matter of discretion, that the principal applicant demonstrates “compelling circumstances” that justify the issuance of employment authorization.
In light of the recent layoffs across industries, individuals who have been forced to stop working abruptly due to a loss of employment or nonimmigrant status due to factors outside of their control may qualify for an EAD. Additionally, EADs may be available to individuals who have an approved employment-based immigrant visa petition, but are unable to receive an immigrant visa due to backlogs.
The USCIS also outlined examples of proof that may be acceptable to demonstrate compelling circumstances, such as school enrollment records, mortgage or lease documents. The USCIS makes clear that a person that receives a compelling circumstances-based EAD would be in authorized stay for a temporary period of time, and therefore would not accrue unlawful presence. This policy is effective immediately and will apply to EAD applications filed on or after June 14, 2023.
If you have any questions regarding eligibility for an EAD, qualifying compelling circumstances, or any other immigration related matter, please do not hesitate to contact KILO Immigration by filling out this contact form.