Certain “compelling circumstances” for applicants and their dependents could affect eligibility criteria for initial and renewal applications for employment authorization, allowing some workers to stay in the United States for a longer period of time, US Citizenship and Immigration Services said last week in releasing new policy guidance.

Such circumstances could include serious illness and disability, a dispute with or retaliation by an employer, other substantial harm to the applicant or significant disruption to an employer, according to the Department of Homeland Security.

“This compelling circumstances-based EAD [employment authorization document] is a temporary stopgap measure intended to address particularly difficult situations, including those that may have otherwise forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States,” a June 14 policy alert from Homeland Security and USCIS stated in a policy alert letter. “USCIS is now issuing guidance on EADs based on compelling circumstances to explain eligibility criteria and the adjudicatory process for reviewing and issuing such EADs.”

The guidance also provides details on evidence that an applicant could submit to demonstrate a compelling circumstance. For example, USCIS said, an applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area who has lived in the United States for “a significant amount of time” could submit evidence such as school or higher education enrollment records, mortgage records or long-term lease records. “Compelling circumstances could include, if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull their children out of school, and relocate to their home country,” USCIS said.

For applicants to be eligible for initial EADs based on compelling circumstances:

  • The principal applicant must be the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the first, second or third employment-based preference category;
  • The principal applicant must be in valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status or in an authorized grace period when Form I-765, Application for Employment Authorization, is filed;
  • The principal applicant must not have filed an adjustment of status application;
  • An immigrant visa must not be available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the State Department’s Visa Bulletin in effect when Form I-765 is filed;
  • The applicant and any dependents must provide biometrics as required;
  • The applicant and any dependents must not have been convicted of a felony or two or more misdemeanors; and
  • The principal applicant must demonstrate compelling circumstances that justify the issuance of employment authorization, which USCIS will determine as a matter of discretion.

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