U.S. Citizenship and Immigration Services has issued policy guidance to clarify eligibility criteria for initial and renewal applications for Employment Authorization Documents in compelling circumstances.

To be eligible for EADs based on compelling circumstances, individuals must meet the following requirements:

  • The principal applicant is the principal beneficiary of an approved Form I-140 in either the first, second or third 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 when they file the Form I-765;
  • The principal applicant has not filed an adjustment of status application;
  • 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. State Department’s Visa Bulletin in effect when they file 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 that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

Additional Information: The compelling circumstances-based EAD is a discretionary, temporary measure intended to address particularly difficult situations, including those on the path to obtaining lawful permanent residence but who otherwise may have been forced to stop working and leave the United States. Compelling circumstances may include serious illness and disability, employer dispute and retaliation and other harms to the applicant or an employer.

More information regarding the policy guidance is available here. The updated USCIS Policy Manual is available here.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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