On June 14, 2023, the U.S. Citizenship and Immigration Service (USCIS) issued a policy guidance to issue employment authorization documents (EADs) for certain individuals who are facing difficult situations.

This is a welcomed policy issued by the Biden Administration at a time when Big Tech has laid off thousands of workers. Those affected are primarily holding H-1B visas who rely on employment in the United States to maintain their lawful immigration status.

Who Can Apply for Work Authorization Based on Compelling Circumstances?

USCIS may issue a one year EAD, if it can be demonstrated that compelling circumstances exist and the individual meets the following eligibility requirements:

1. The principal applicant is in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date you file the application for employment authorization;
2. The principal applicant is the beneficiary of an approved Form I-140 of 1st, 2nd or 3rd the Employment-Based Preference Category,
3. The principal applicant has not filed an Application to Register Permanent Residence or Adjust Status (Form I-485);and
4. An immigrant visa is not available based on the Department of State’s Final Action Date of the Visa Bulletin.

Spouses and children of the principal foreign nationals may also be eligible for a compelling circumstances EAD. They must be in valid nonimmigrant status at the time of filing the compelling circumstances EAD application.

What is an Compelling Circumstances EAD?

In general, "compelling circumstances" are not defined by regulations, therefore USCIS has the discretion to determine whether compelling circumstances exist on a case-by-case basis. Compelling circumstances are situations outside a principal applicant’s control that adversely affect the ability to continue employment for the petitioning employer and justify the issuance of an EAD.

USCIS Policy Manual lists non-exhaustive examples of situations which may qualify as compelling circumstances, such as:

• Serious Illness and Disability
• Employer Dispute or Retaliation
• Other Substantial Harm to the Applicant
• Significant Disruption to the Employer

Other Considerations

• Individuals who begin employment on a compelling circumstances EAD will no longer be maintaining nonimmigrant status but may be considered by USCIS to be in a period of authorized stay, and will not accrue unlawful presence in the United States while the EAD is valid.
• If the foreign national is working with a compelling circumstances EAD and finds an I-129 Petition sponsoring company, USCIS will not grant a change of status or extension of stay. The individual will need to apply for a visa and/or admission from outside the United States to begin working.

Need Assistance?

For any questions regarding H-1B visas or alternative visa options such as O-1, L-1 or E-1 visas please contact us!