June 22, 2023

Volume XIII, Number 173

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USCIS Provides Guidance on Employment Authorization Documents Based on Compelling Circumstances

On June 14, 2023, U.S. Citizenship and Immigration Services (USCIS) released its policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents in compelling circumstances based on existing regulatory requirements at 8 C.F.R §204.5(p).

Specifically, for an applicant to be eligible for an initial employment authorization document (EAD) based on compelling circumstances, the applicant must meet the following requirements:

  • The principal applicant is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker in 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 when the applicant files Form I-765, Application for Employment Authorization;

  • 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 Final Action Date Chart in U.S. Department of State’s Visa Bulletin when the Form I-765 is filed;

  • 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, the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

The guidance from USCIS provides a non-exhaustive list of situations that could lead to a finding of compelling circumstances for principal applicants and their defendants. Some of them include: serious illness and disability, employer dispute and retaliation, other substantial harm to the applicant, or significant disruption to the employer.

This guidance also provides details on the type of evidence an applicant may submit to demonstrate one of the outlined compelling circumstances. A principal applicant who has an approved I-140, but to whom an immigrant visa is not available and who has lived in the United States for a long period of time, could provide evidence such as school or higher education enrollment records, mortgage records, or long-term lease records to support a finding of compelling circumstances. As an example, a compelling circumstance could be found where due to a job loss, the principal applicant’s family would be forced to sell their home for a loss, pull their children out of school, and relocate to their home country. 

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XIII, Number 167
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About this Author

Seongbae Park Associate Greenberg Traurig, LLP
Associate

Seongbae Park is a member of the Immigration & Compliance Practice in Greenberg Traurig’s Atlanta office. He focuses his practice on employment-based immigration matters. Seongbae has experience with nonimmigrant visas, including E, F, H-1B, J, L, O, and TN, and with immigrant visas, focusing on PERM labor certifications, EB-1, EB-2, and EB-3 immigrant petitions.

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