Foreign nationals in the U.S. having trouble maintaining employment authorization while their employment-based applications is processing may be qualified for a compelling circumstances EAD. The adjudication standard for this process is high, but this EAD category can be a lifesaver for those that meet the criteria. Courtesy of the AILA, below are FAQs for anyone interested in applying, with our edits.
In November 2016, as part of the issuance of a final rule entitled “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” [commonly known as the “High-Skilled” Final Rule], USCIS amended its regulations to allow certain nonimmigrants with approved Form I-140 petitions to apply for an independent employment authorization document (EAD), provided the individual demonstrates “compelling circumstances.” This USCIS final rule became effective on January 17, 2017.
How does a nonimmigrant
qualify for a compelling circumstances EAD?
To qualify for a compelling circumstances EAD, the
nonimmigrant must satisfy the following criteria:
1.
be the principal beneficiary of an approved Form I-140
petition for classification under the EB-1, EB-2 or EB-3 visa categories;
2.
be 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 the
application for employment authorization (Form I-765) is filed;
3. establish that the principal beneficiary’s priority date for an immigrant visa is not current according to the Final Action Date in effect according to the Department of State’s Visa Bulletin on the date the application for employment authorization is filed; and
4. the principal beneficiary demonstrates compelling circumstances that, in the discretion of USCIS, justify an independent grant of employment authorization.
Note: an individual will not be eligible for a
compelling circumstances EAD, including renewal, if the individual has been
convicted of any felony or two or more misdemeanors.
What constitutes compelling
circumstances for purposes of qualifying for a compelling circumstances EAD?
Compelling circumstances are generally situations outside a
worker’s control that warrant the DHS Secretary’s exercise of discretion in
granting employment authorization, on a case-by-case basis, given the totality
of the circumstances. While USCIS did not define “compelling circumstances” in
its final rule, it did provide some examples of situations that may be
considered compelling and justify the need for employment authorization, shown below.
1. Serious illnesses or disability faced
by the nonimmigrant worker or his or her dependent
2. Employer retaliation against the
nonimmigrant worker
3. Other substantial harm to the applicant; and
(Examples: Unexpected loss of employment and similar job opportunties do no exist in home country; Uprooting of family which result in substantial harm.)
4.
Significant disruption to the employer
Adjudicators will look at various factors, including all
factors identified by the applicant, and may consider whether the evidence
supports providing compelling circumstances employment authorization. DHS will
not, however, consider a long wait for an immigrant visa to constitute a
compelling circumstance on its own. Similarly, home
ownership, notable academic qualifications, or dissatisfaction with a position
or salary, standing alone, do not rise to the
level of a compelling circumstance. Furthermore, an interest in
entrepreneurship standing alone cannot support
an employment authorization request based on compelling circumstances. However,
any one of these situations could rise to the level of compelling circumstances
in combination with other circumstances.
Beneficiaries of approved EB–2 National Interest Waiver
petitions, which include national interest waiver beneficiaries as well as
physicians working in medically underserved areas, are eligible to apply for
employment authorization based on compelling circumstances, as long as they
meet all other applicable eligibility requirements.
What is the validity of a
compelling circumstances EAD?
USCIS is authorized to issue a compelling circumstances EAD
for up to one (1) year from the date of issuance, with the option to renew the
EAD in 1-year increments.
What is the EAD category
for individuals who are granted a compelling circumstances EAD?
Principal beneficiaries who receive an initial grant of
employment authorization based on “compelling circumstances” (or a renewal of
such employment authorization) will receive an EAD based on category (c)(35).
Qualifying dependent spouses and children of a principal beneficiary granted
employment authorization under category (c)(35) who apply for work
authorization will receive EAD cards based on category (c)(36).
How does one renew a
compelling circumstances EAD?
The applicant must file the application to renew his or her
compelling circumstances EAD application prior to the expiration of his or her
current employment authorization. Applicants must be in the United States when
applying for the benefit.
In order to be eligible to renew the compelling circumstances
EAD pursuant to 8 CFR §204.5(p)(3), the principal beneficiary must demonstrate
that,
1.
he or she continues to face compelling circumstances and
establish that an immigrant visa is not authorized for issuance based on his or
her priority date, preference category, and country of chargeability according
to the Final Action Date in effect on the date the renewal application is
submitted to USCIS; or
2.
the difference between his or her priority date and the
relevant Final Action Date is 1 year or less (eligibility does not require
demonstrating compelling circumstances).
What is the immigration
status of the principal worker who obtains a compelling circumstances EAD?
While individuals eligible for compelling circumstances EAD
must have lawful nonimmigrant status at the time they apply, such individuals
will generally lose that status once they engage in employment pursuant to the
EAD. While such a foreign national will no longer be maintaining nonimmigrant
status, he or she will generally not accrue unlawful presence during the
validity period of the EAD or during the pendency of a timely filed and
non-frivolous application.
USCIS indicates in its final rule that “USCIS intends to
adjust its policy guidance to confirm that holders of compelling circumstances
EADs will be considered to be in a period of authorized stay,” As the principal
applicant’s authorized stay does not automatically extend to any dependent
family members, dependents who require this authorized stay should apply for a
compelling circumstances EAD under the dependent classification (i.e. (c)(36)
applicant), as discussed below.
Is a compelling
circumstances EAD applicant eligible to apply for adjustment of status?
An individual who is seeking lawful permanent residence based on classification as an employment-based immigrant is generally barred by INA §245(c)(2) and (c)(7) from applying for adjustment of status if he or she is not in lawful nonimmigrant status. Thus, a compelling circumstances EAD applicant who uses the EAD for work may be ineligible to apply for adjustment based on an employment-based immigrant classification unless an exception, such as INA §245(k), applies.
May a compelling circumstances
EAD applicant who needs to travel abroad for urgent humanitarian reasons or
significant public benefit apply for advance parole?
While the preamble to the final rule suggests that DHS may
consider granting advance parole for individuals with compelling circumstances
EAD to travel for urgent humanitarian reasons or significant public benefit on
a case-by-case basis, neither the regulation as set forth under the final rule,
USCIS website on compelling circumstances EAD, nor Form I-131 instructions provide
any guidance on this point. Accordingly, barring another basis for an advance
parole, it is unclear whether a compelling circumstances EAD applicant may
apply for an advance parole.
May the dependent spouse
and children of the principal nonimmigrant worker apply for a compelling
circumstances EAD?
Yes. The dependent spouse and children of the principal
beneficiary may apply for a compelling circumstances EAD, provided they are in
nonimmigrant status at the time the principal beneficiary applies for the
employment authorization and provided that the principal beneficiary has been
granted employment authorization and that work authorization has not been
terminated or revoked. Such family members may apply for employment
authorization concurrently with the principal beneficiary, but they cannot be
granted employment authorization until the principal beneficiary has been
granted work authorization. The validity period of employment authorization
granted to the family members may not extend beyond the validity period of
employment authorization granted to the principal beneficiary.
How does an individual
submit a request for a compelling circumstances EAD?
To apply for a compelling circumstances EAD, an individual
must file Form I-765, Application for Employment Authorization, with USCIS.
Note that two identical two-by-two inch passport style color photographs of the
applicant must be submitted with the application.
How long does it take for
USCIS to process a compelling circumstances EAD?
Processing times for
compelling circumstances EADs can vary greatly. Some members report waiting
several months for a compelling circumstances EAD. While expedited processing
can be requested, expedite requests are granted at the discretion of USCIS. As such,
nonimmigrants who are seeking to take advantage of this immigration benefit
should be apprised of the possibility that the benefit could take several
months for USCIS to process.
Must the principal
beneficiary wait for the EAD application to be approved before commencing work
pursuant to the EAD?
Yes. An individual must
receive the compelling circumstances EAD from USCIS before they can begin
working under this employment authorization.
Is the renewal of a
compelling circumstances EAD eligible for auto extension?
No. The compelling circumstances EAD is not classified as an EAD eligible for automatic extension while a timely filed renewal application is pending.
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