I-140 Beneficiary and Families are eligible for EAD Guidance based on Compelling Circumstances

USCIS today issued new guidance on Employment Authorization Document (EAD) based on compelling circumstances. The guidance applies to both initial applications for an EAD or for a renewal of an EAD.

In order for the compelling circumstances to apply for an initial EAD, USCIS states that the following eligible requirements must be met:

(1) You have NOT filed Form I-485;

(2) You have a Form I-140 approved on your behalf;

(3) You are in the United States in a valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status; and

(4) You face compelling circumstances.

The applicant and their dependents are eligible. As a matter of discretion, USCIS determines that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

Per the USCIS bulletin, the guidance does not give an exhaustive list of what constitutes a compelling circumstance. Rather, USCIS seems to be taking the position that it will review each application for a compelling circumstance on a case by case basis. Nevertheless, USCIS did provide some guidance on what may be considered a compelling circumstance. These include: serious illness or disability; employer dispute or retaliation; significant disruption to the employer or other substantial harm to the applicant.

Finally, the bulletin provides examples of what kinds of evidence may be submitted to the USCIS to demonstrate a compelling circumstance. The bulletin provides an example of a principal applicant who has lived in the US for an extended period of time and has evidence which includes mortgage payments, or school records, who has an approved petition in an oversubscribed visa category. A compelling circumstance in this example would be if the applicant loses their job, then the family would be forced to sell their home at a loss, pull their children out of school and move back to their home country.

While this news may be disappointing to some who would like to have seen an update in priority dates, this guidance does provide some relief to those who would otherwise have no option but to move back to their home country in the event that there is a major negative change to their life.

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