The compelling circumstances-based Employment Authorization Document (EAD) is a specific type of work permit issued by the United States Citizenship and Immigration Services (USCIS) issued to beneficiaries of approved employment-based petitions and who cannot obtain the green card due to a backlog. It allows individuals who are in the United States on certain non-immigrant visa categories to apply for employment authorization when they can demonstrate compelling circumstances.

Compelling circumstances refer to unique and extraordinary situations that arise after an individual has entered the United States on a non-immigrant visa. These circumstances may include significant health issues, emergencies, or unforeseen events that create a compelling need for the individual to work and support themselves or their family.

To be eligible for a compelling circumstances-based EAD, individuals must meet specific criteria set by USCIS, including providing evidence and documentation to support their claim of compelling circumstances. USCIS reviews each case individually and decides based on the merits of the situation presented.

However, until now it has limited use and very few people have been able to qualify. Even a job loss was not considered to be compelling even though the loss of a job often has greater consequences.

It is important to note that compelling circumstances EADs are temporary in nature and are granted for a limited period of time, typically up to one year. However, if the compelling circumstances exist then there is the potential to renew this. The issuance of compelling circumstances EAD does not provide a path to permanent residency or a change in an individual’s immigration status.

USCIS has now issued new policy guidance, effective immediately and applies to applications filed on or after June 14, 2023. This new guidance can be found in Volume 10-Employment Authorization, Part B.

Eligibility

To be eligible for an Employment Authorization Document (EAD) based on compelling circumstances, applicants need to meet certain requirements:

Approved Petition: The applicant must be the main beneficiary of an approved Immigrant Petition for Alien Workers (Form I-140) in the 1st, 2nd, or 3rd employment-based preference category.
Nonimmigrant Status: The applicant must be in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, or within an authorized grace period when applying for the EAD.
No Adjustment of Status: The applicant should not have filed an application to Adjust Status (Form I-485).
Visa Availability: The applicant must not be eligible for an immigrant visa based on their priority date, as indicated in the U.S. Department of State’s Visa Bulletin.
Biometrics: The applicant and their dependents need to provide biometrics as required.
Criminal Record: The applicant and their dependents should not have been convicted of a felony or two or more misdemeanors.
USCIS Discretion: USCIS has the discretion to decide if the applicant demonstrates compelling circumstances that warrant the issuance of employment authorization.

The new guidance outlines the types of evidence that an applicant can provide to demonstrate one of these compelling situations. Compelling circumstances include serious illness or disability, employer dispute/retaliation, other substantial harm to the applicant or significant disruption to the employer.

The reason why this new policy guidance is so significant is because USCIS has now given examples of the type of scenario which could give rise to compelling circumstances. Specifically, the new policy guidance includes the following example:

“As an example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area who has lived in the United States for a considerable period of time, and has school-aged children and a mortgage, may face 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. Note that not all of these elements (lengthy time in the United States, mortgage, and school-age children) are necessary for a case-by-case finding of compelling circumstances based on substantial harm to the applicant.”

The policy guidance also states that job loss alone could be sufficient:

“Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss. Job loss may be sufficient to establish financial hardship depending on the individual circumstances. For example, the loss of health insurance may rise to this level for a principal applicant or their dependents facing extended illness or requiring extensive medical treatment.”

The utilization of the Compelling Circumstances Employment Authorization Document (EAD) has been limited due to the lack of clear guidance regarding the qualifying circumstances. However, with the introduction of this new policy guidance, we anticipate a greater number of individuals will be motivated to submit their applications. Also worth noting is that a spouse or child may also file an application for a compelling circumstances-based EAD concurrently with the principal’s application.

If you have any questions regarding the above, please reach out to PLG Partner, Chris Prescott at cprescott@patellegal.com.