USCIS has recently released the policy guidance on eligibility criteria for those applying for initial or renewal EADs in compelling circumstances based on existing regulatory requirements at 8 CFR 204.5(p).
To qualify for an initial Employment Authorization Document (EAD) under compelling circumstances, applicants must meet the following eligibility criteria:
- 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 Form I-765.
- 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 must provide biometrics as needed.
- The applicant and their dependents have not been convicted of a felony or two or more misdemeanors.
- USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.
The guidance comprises compelling circumstances for both principal applicants and their dependents, presenting a list of scenarios that could indicate the presence of compelling circumstances. These situations include but are not limited to serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer.
The guidance also provides the type of evidence an applicant can share to demonstrate the presence of compelling circumstances. For instance, a principal applicant who possesses an approved immigrant visa petition in an oversubscribed visa category or chargeability area and has resided in the US for a substantial period may submit supporting documentation like school or higher education enrollment records, mortgage records, or long-term lease records.
This evidence supports the potential existence of compelling circumstances. Examples of other compelling circumstances could include a situation where the family, due to job loss, would otherwise be compelled to sell their home at a loss, withdraw their children from school, and relocate to their home country.
For more information about these compelling circumstances employment authorization documents(EADs), refer to the policy alert (PDF, 282.22 KB).
Source: USCIS
