Updated Guidance on I-140 EAD Based on Compelling Circumstances

The U.S. Citizenship and Immigration Services (USCIS) has released updated guidance for an employment authorization document (EAD) based on compelling circumstances for a person who has an I-140 immigrant petition approval. The updated guidance explains the eligibility criteria for a compelling circumstances EAD, gives examples of possible compelling circumstances, and lists the recommended evidence to support certain claims.

Background on the Compelling Circumstances EAD

A compelling circumstances EAD is a stopgap measure for a nonimmigrant who may be forced to stop working abruptly and must leave the United States due to the loss of employment and loss of nonimmigrant status. If a nonimmigrant with an approved I-140 can demonstrate compelling circumstances, then the USCIS may issue an EAD that places the nonimmigrant in a period of authorized stay and provides temporary work authorization. A detailed overview of the compelling circumstances EAD is explained in the MurthyDotCom NewsBrief, I-140 EAD Based on Compelling Circumstances (30.Apr.2020).

Eligibility Criteria for Compelling Circumstances EAD

The updated guidance clarifies the requirements that must be met to qualify for a compelling circumstances EAD. The primary requirements include, first, that the applicant is in the U.S. in valid E-3, H1B, H1B1, L-1, or O-1 status, including in any applicable grace period, at the time of filing the EAD application. Second, the applicant must be the principal beneficiary of an approved I-140 petition. Third, the person cannot have a pending adjustment of status (form I-485) application, and the applicant’s priority date cannot be current in the final action chart of the visa bulletin. And finally, the applicant must demonstrate compelling circumstances that would justify the issuance of an EAD.

Examples of Compelling Circumstances

“Compelling circumstances” generally are situations outside an individual’s control, which prevent that individual from working for a petitioning employer. Broad compelling circumstance categories include serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant (e.g., financial), or a significant disruption to the employer.

Although the regulations do not define “compelling circumstances,” the updated USCIS guidance provides examples of potentially qualifying situations and lists recommended evidence for supporting the claim. For example, compelling circumstances may be found if an individual with a serious illness or disability is required to move to a different geographic area for treatment and leave a sponsoring employer. To support this claim, the USCIS recommends providing medical records and any other relevant information.

Job Loss as a Basis for Compelling Circumstances

Although job loss alone would generally not suffice, the updated guidance clarifies how job loss accompanied by other hardships could justify the issuance of a compelling circumstance EAD, particularly for a nonimmigrant who has been waiting years in the United States for a priority date to become current. If such an individual has school-age children and a mortgage and would be forced to sell the home at a loss or terminate the children’s education, compelling circumstance could be found. To support these claims, the individual should provide school enrollment records and mortgage records, among other relevant evidence.

Conclusion

With so many layoffs in the tech and other industries in the past year or two, the USCIS clarification could provide an option for those who may be eligible to apply. A compelling circumstance EAD is ultimately a discretionary relief, and the USCIS will adjudicate each application based on the particular facts of the case. Nevertheless, the updated guidance significantly clarifies what the USCIS views as compelling circumstances and how certain claims may be adjudicated. For an individual who may have no other option, the compelling circumstance EAD could provide a critical lifeline.

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