U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance outlining the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances. This guidance is based on existing regulatory requirements at 8 CFR 204.5(p).
To qualify for an initial EAD based on compelling circumstances, applicants must meet the following requirements:
- The principal applicant must be the primary beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, 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 authorized grace period when filing Form I-765, Application for Employment Authorization;
- The principal applicant should not have filed an adjustment of status application;
- An immigrant visa should not be available to the principal applicant based on their priority date, as indicated in the U.S. Department of State’s Visa Bulletin when filing Form I-765;
- The applicant and their dependents must provide the required biometrics;
- The applicant and their dependents should not have been convicted of a felony or two or more misdemeanors; and
- USCIS must determine, at its discretion, that the principal applicant presents compelling circumstances justifying the issuance of employment authorization.
The guidance outlines various situations that may be considered compelling circumstances, such as serious illness or disability, employer disputes or retaliation, significant harm to the applicant, or substantial disruption to the employer. It also provides information on the types of evidence that can support a finding of compelling circumstances, such as enrollment records, mortgage records, or long-term lease records.
These guidelines aim to provide clarity on the eligibility criteria for individuals facing compelling circumstances when seeking employment authorization.