On June 14, 2023, United States Citizenship and Immigration Services (“USCIS”) announced new policy guidance has been added to its Policy Manual addressing the eligibility criteria for the issuance of employment authorization documents in compelling circumstances. Classified as those circumstances which are “beyond the usual hardship associated with job loss”, Volume 10 of the USCIS Policy Manual, details what foreign nationals must provide in order to be eligible for an initial Employment Authorization Document (“EAD”) based on compelling circumstances.
Noting that “the term “compelling circumstances” is not defined in the regulation, and officers have case-by-case discretion based on the evidence applicants provide” the Service indicates that when applying for work authorization based on compelling circumstances, applicants must show:
The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the 1st, 2nd, or 3rd employment-based preference category;
The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765, Application for Employment Authorization;
The principal applicant has not filed an adjustment of status application;
An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765;
The applicant and their dependents provide biometrics as required;
The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.
The Policy Manual guidance describes the types of compelling circumstances principal applicants and their dependents may be faced with and 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 Service also provides guidance on the types of evidence applicants may submit to demonstrate a compelling circumstance. Finally, the Service suggests visiting their resource page for options nonimmigrant workers may have following termination of employment should they lack eligibility under the compelling circumstances requirements. This is a great resource for those whose work authorizations were compromised due to recent tech sector layoffs.
Because the road to employment-based green cards is long and “can last years, even decades, due to the per-country limit and low annual levels for employment-based immigrant visas” the new guidance encourages “greater use of an existing agency tool to ensure high-skilled foreign nationals are not forced to leave the United States due to unforeseen circumstances” which is a relief to many foreign nationals that have found themselves at difficult crossroads in their journey towards permanent residency in the US.