The Immigration Observer

Employment Authorization Document Based on Compelling Circumstances

What happens when a skilled worker facing green card backlogs loses work authorization and his or her job as a result? Or if he or she becomes very sick and cannot work but needs health insurance? Or he or she is laid off but has another job offer but no temporary visa options available? These scenarios, and many others, are far too common due to the extremely long wait times for obtaining a green card in the United States. Recently, USCIS has hinted at a possible solution for seeking out an alternative form of work authorization that might plug this gap.

On June 14, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to address broadened eligibility criteria and standards for applications for employment authorization involving compelling circumstances. This guidance is contained in Volume 10 of the USCIS Policy Manual, is effective immediately, and applies prospectively to applications filed on or after June 14, 2023.

By way of background, noncitizens in the United States must have employment authorization before they may lawfully work in the country. In many cases, a particular visa or immigration status automatically conveys employment authorization to the noncitizen(e.g. the H-1B visa). In circumstances where this is not the case, noncitizens may affirmatively apply for employment authorization, and USCIS may grant such authorization at its discretion. This will result in the issuance of an Employment Authorization Document or EAD.

For example, USCIS may provide employment authorization to beneficiaries of approved employment-basedI-140immigrant visa petitions who face delays due to backlogs in immigrant visa availability and who face adverse compelling circumstances resulting from termination from employment and loss of nonimmigrant status beyond the usual hardship associated with job loss.

The new USCIS guidance attempts to clarify and provide more specific standards as to which types of situations qualify as compelling circumstances for the purposes of this discretion. The new guidance notes that for an applicant to be eligible for an EADbased on compelling circumstances, the applicant must meet the following eligibility requirements:

• The principal applicant is the principal beneficiary of an approved Immigrant Petition for Alien Workers (Form I-140) 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 at the time the applicant files the Application for Employment Authorization (Form I-765);
• The principal applicant has not filed an Application to Register Permanent Residence or Adjust Status (Form I-485);
• 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 (DOS)’s Visa Bulletin in effect at the time the applicant files Form I-765;
• The applicant and their dependents provide biometrics, as required;
• The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
• USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.[emphasis added].

To address the last prong of the referenced requirements, the new guidance highlights examples of specific circumstances that qualify as compelling circumstances. Applicants should submit an explanation of the compelling circumstances supported by evidence with the application and USCISofficers have discretion on a case-by-case basis to determine whether compelling circumstances exist. The following is a list of the specifically noted compelling circumstances, although the guidance is clear that the list is non-exhaustive and simply illustrates how certain situations could lead to a finding that compelling circumstances exist:

• Serious Illness and Disability(e.g. applicant unable to depart the U.S. and cannot work at full capacity and requires work authorization to remain in the U.S.)
• Financial Hardship when coupled with circumstances beyond those typically associated with job loss (e.g. losing health insurance when one is very sick)
• Employer Dispute or Retaliation
• Other Substantial Harm to the Applicant
• Significant Disruption to the Employer(e.g.where the applicant is unable to change or extend nonimmigrant visa status loss of the applicant would severely disrupt ongoing projects and/or deals that could lead to significant financial loss).

The new USCIS guidance related to the compelling circumstances employment authorization discretion also highlights several important procedural elements governing these requests. Notably:

USCIS may grant initial employment authorization based on compelling circumstances for up to 1 year.

The spouse and children of a nonimmigrant who receives a compelling circumstances-based EAD are also eligible to apply for a compelling circumstances-based EAD if the qualifying relationship exists both at the time of filing and adjudication.

EADs based on compelling circumstances may be renewed in 1-year increments. A renewal application must be filed before the expiration of the previous EAD. Compelling circumstances-based EADs are not eligible for automatic extensions.

USCIS considers an applicant with a valid EAD based on compelling circumstances to be in a period of authorized stay by the Secretary of Homeland Security. In addition, USCIS considers the time during which the EAD application was pending to be a period of authorized stay. Therefore, the applicant generally does not accrue unlawful presence during the validity period of the EAD or during the pendency of a timely filed non-frivolous application. However, a period of authorized stay is distinguishable from nonimmigrant status, meaning that individuals who are in a period of authorized stay but are not in a nonimmigrant status may, depending on the facts, be ineligible for a change or adjustment of status for failing to maintain a lawful status. However, since individuals in an authorized period of stay do not accrue unlawful presence, they 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).

If you have additional questions related to compelling circumstances EADs, or think you may be eligible, please contact your Lepore Taylor Fox attorney at 908-873-1800 or info@ltf-law.com.