USCIS GUIDANCE: EMPLOYMENT AUTHORIZATION DOCUMENTS BASED ON COMPELLING CIRCUMSTANCES

USCIS has issued a policy alert and has updated its policy manual to provide additional guidance on the compelling circumstances that may warrant the issuance of certain Employment Authorization Documents (EADs).

Under the current regulation, USCIS may, in its discretion, issue EADs to certain I-140 beneficiaries who, at the time of filing Form I-765: (1) hold E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status; (2) have an I-140 priority date that is not current according to the visa bulletin; and (3) can demonstrate compelling circumstances that justify the issuance of employment authorization.

An individual with a valid compelling circumstances-based EAD is considered by USCIS to be in a period of authorized stay, and therefore will not accrue unlawful presence.

In its updated policy manual, USCIS provides a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including:

• serious illness and disability,
• employer dispute or retaliation,
• other substantial harm to the applicant, or
• significant disruption to the employer.

The updated policy manual also provides guidance on evidence an applicant could submit to demonstrate compelling circumstances such as:

• school or higher education enrollment records,
• mortgage records, or
• long-term lease records

Finally, USCIS confirms in its policy manual that a compelling circumstances-based EAD will be granted for a validity period of up to 1 year, with the possibility of subsequent renewal(s).