U.S. Citizenship and Immigration Services (USCIS) released policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances based on existing regulatory requirements at 8 CFR 204.5(p).
Noncitizens in the United States must have employment authorization before they may lawfully work in the country. A noncitizen’s immigration status and, frequently, their circumstances determine whether they are permitted to work in the United States.
While some noncitizens automatically receive employment authorization due to their immigration status or circumstances, other noncitizens must apply voluntarily for employment permission, and at its discretion, USCIS may approve your application.
USCIS may provide employment authorization to beneficiaries of approved employment-based immigrant visa petitions who face delays due to backlogs in immigrant visa availability.
Beneficiaries who experience unfavorable outcomes from losing their nonimmigrant status and being fired from their jobs may be eligible for an Employment Authorization Document (EAD) if they have compelling circumstances that go beyond the typical hardship of losing their jobs.
This compelling circumstances-based EAD is a temporary provisional designed to deal with especially challenging conditions, such as those that may have otherwise caused people working their way toward lawful permanent residence to abruptly stop working and leave the country. In response to compelling circumstances, USCIS is now providing advice on EADs that outlines the requirements for eligibility and the adjudicative procedure for considering and granting such EADs.
USCIS Policy Highlights
- Explains the eligibility criteria for initial and renewal applications for an EAD based on compelling circumstances for both the principal applicant and dependents.
- Cites a non-exhaustive list of situations that could lead to support the conclusion that compelling circumstances exist, including severe illness and disability, employer conflict or retaliation, other substantial harm to the applicant, or significant disruption to the employer.
- Provides guidance on evidence an applicant could submit to demonstrate one of these compelling circumstances; for example, a principal applicant with an approved immigrant visa petition in an over-subscribed visa category or chargeability area, who has lived in the United States for a considerable period of time, could submit such evidence as school or higher education enrollment records, mortgage records, or long-term lease records, to support a potential finding of compelling circumstances if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull the children out of school, and relocate to their home country.
- Provides guidance on what adjudication of compelling circumstances-based EADs entails, including the maximum validity periods USCIS may authorize. •
- Explains that an individual with a valid compelling circumstances-based EAD is considered to be in a period of authorized stay, and therefore will not accrue unlawful presence. Although they may become ineligible for adjustment of status under INA 245(a), such an individual may subsequently leave the United States to apply for an immigrant or nonimmigrant visa at a consular post abroad, without triggering the unlawful presence grounds of inadmissibility (as long as they have not otherwise accrued periods of unlawful presence)
This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
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