COVID-19 has left countless non-immigrants out of a job and scrambling for ways to remain in the U.S. For individuals who have been in the U.S. for many years and are already on the path to lawful permanent residency, the loss of a job can be absolutely devastating and the prospect of having to leave the U.S. may soon become a reality.

However, applying for a compelling circumstance EAD may be a viable option for those who already have an approved employment-based immigrant petition in a category experiencing a backlog and who now find themselves facing compelling circumstances.

How to qualify

To qualify for a compelling circumstance EAD an applicant must meet all of the following criteria:

Be in the U.S. in E-3, H-1B, H-1B1, O-1 or L-1 non-immigrant status;
Be the principal beneficiary of an approved I-140;
Be able to demonstrate that an immigrant visa is not available based on their priority date, preference category and country of chargeability according to the final action date chart as per the visa bulletin; and
Be able to demonstrate compelling circumstances to warrant the issuance of an independent grant of employment authorization.

What is considered a compelling circumstance?

Although the regulations do not define compelling circumstance, DHS listed some examples in the notice of proposed rulemaking to include the following:

Serious illness/disability to a non-immigrant worker or his/her dependent;
Employer retaliation;
Substantial harm to the applicant; or
Significant disruption to the employer.

In light of COVID-19 and the problems associated with it, it would certainly be possible to make a more compelling case, however, the number of people applying for this type of employment authorization will have undoubtedly increased and USCIS will limit the issuance to the most extreme cases.

Are spouses/children eligible to apply for a compelling circumstance EAD?

Yes, qualifying dependent spouses and children are eligible to apply for separate work authorization.

How do I apply for a compelling circumstance EAD?

In order to qualify for a compelling circumstance EAD, an applicant must submit Form I-765 with the appropriate filing fee to USCIS prior to the expiration of their current status. The current filing fee is $410.00. The biometric fee of $85.00 is not applicable to applicants applying for an EAD based on compelling circumstances.

How long is the EAD valid for?

Once approved the EAD is valid for 1 year, however, an applicant cannot work under a compelling circumstance EAD until USCIS has approved their application and issued an EAD card.

This EAD can be renewed in 1- year increments by submitting a further I-765 application. To continue to be eligible an applicant will need to demonstrate that compelling circumstances continue to exist unless the difference between the priority date and the relevant final action date is one year or less. In this scenario, there is no requirement to show compelling circumstances.

How long will it take USCIS to process my case?

Applicants can expect to wait at least 3-6 months for a decision, however processing times have increased for almost every type of application due to COVID and with the potential for USCIS to furlough three-quarters of its staff applicants may experience even further delays. USCIS also announced recently that it has stopped printing work authorization documents so this could also impact the wait time.

What will be my status while on a compelling circumstance EAD and is it possible to switch back to say H-1B?

Working on a compelling circumstance EAD does not provide an applicant with a non-immigrant status. Such an applicant will be in a period of authorized stay and will have unrestricted work authorization. Furthermore, provided the application is filed prior to the expiration of the applicant’s current status an applicant is entitled to remain in the U.S. during the pendency of the application.

In order to return to an individual’s original status such as H-1B, it would be necessary to file a new petition for Consular processing.

Can I file I-485 to adjust status if my priority dates become current?

Because the EAD provides no valid status it is not possible to file an I-485 in the event that an applicant’s priority date becomes current and therefore travel will most likely be necessary.

However, if an individual travels and returns with a new non-immigrant visa an individual can then file for adjustment of status once back in the U.S.

Final thoughts

If you are on a non-immigrant visa such as an H-1B and have lost your job due to COVID-19, you may be entitled to a 60-day grace period allowing you to find a new employer to file a petition so that you can continue working. However, finding a new job when most companies have put a freeze on hiring may make this an impossible task is given the limited amount of time available to complete this.

Depending on your situation filing a compelling circumstance EAD may be a good option to allow you to remain in the U.S. If you think you might qualify please contact Chris Prescott at cprescott@patellegal.com to obtain more information and discuss your individual circumstances.