U.S. Citizenship and Immigration Services (USCIS) recently released policy guidance that could help certain foreign-born workers receive or renew an Employment Authorization Document (EAD).

The guidance addressed “compelling circumstances” for principal applicants and their dependents.

While employment authorization for certain noncitizens is automatically provided by virtue of their immigration status or circumstances, other noncitizens must affirmatively apply for employment authorization, and USCIS may grant employment authorization as a matter of discretion.

According to the policy alert, “This compelling circumstances-based EAD is a temporary stopgap measure intended to address particularly difficult situations, including those that may have otherwise forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States.”

Eligibility

To be eligible for an EAD under compelling circumstances, the applicant must meet certain requirements.

For example, the principal applicant must be the beneficiary of an approved I-140, Immigrant Petition for Alien Worker in the 1st, 2nd, or 3rd employment-based preference category. Additionally, the applicant needs to be in a valid nonimmigrant status like E-3, H-1B, H-1B1, O-1, or L-1, or within the authorized grace period when they apply for the EAD.

Compelling circumstances

The USCIS has provided a helpful list of situations that could qualify as special circumstances:

Serious illness or disability: For example, the principal applicant faces an illness or disability that limits their ability to continue their approved employment, or a sick dependent requires specialized care that would require moving to another geographic area.
Employer dispute or retaliation: This could include whistleblower action, abusive conduct, or other documented dispute. Retaliation is not limited to termination. It could take any form that adversely affects the applicant’s employment, including harassment.
Substantial harm to the applicant: Examples of substantial harm include financial hardships, inability to meet a family member’s special needs, or an inability to return to their home country due to conditions there.
Significant disruption to the employer: For example, the applicant’s departure would negatively impact projects and result in significant monetary losses or other disruption to the employer.

Note, USCIS generally does not consider unemployment or job loss, in and of itself, to be a compelling circumstance unless the principal applicant can show additional circumstances that compound the hardship ordinarily associated with job loss.

As an example, a principal applicant who has lived in the U.S. for a considerable amount of time, and has school-aged children and a mortgage, may face compelling circumstances if, due to a job loss, they are forced to sell their home for a loss, pull their children out of school, and relocate to their home country.