Adhikari Law PLLC, Washington D.C. Temporary Employment Authorization document may be available to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions (I-140) and their qualifying spouse and children, and who are caught in backlogs for immigrant visas and face compelling circumstances. This stop-gap measure by the government is intended to address certain particularly difficult situations, including those that previously may have forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States. There are two categorities of these work authorization criteria:
- Category (c)(35) is for principal beneficiaries of approved Form I-140s who are in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status and are applying for an initial grant of employment authorization based on “compelling circumstances,” or a renewal of such authorization.
- Category (c)(36) is for qualifying dependent spouses and children of a principal beneficiary granted employment authorization under category (c)(35).
USCIS may grant employment authorization and issue an Employment Authorization Document (EAD) in these two categories for up to one year if it determines that there are compelling circumstances that justify issuing employment authorization.
NOTE: USCIS considers an applicant with a valid EAD based on compelling circumstances to be in a period of authorized stay by the Secretary of Homeland Security. If you receive a compelling circumstances EAD, and begin working based on this EAD, you will be in a period of authorized stay, but you will no longer be maintaining your nonimmigrant status. However, you generally will not accrue unlawful presence in the U.S. while the EAD is valid or, if you filed a non-frivolous application on time, while your application is pending.
Eligibility Requirements
You are eligible to apply for an initial EAD under category (c)(35) if you:
- Are 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 you file the application for employment authorization;
- Are the principal beneficiary of an approved Form I-140;
- Can establish that an immigrant visa is not authorized for issuance to you based on your priority date, preference category, and country of chargeability according to the Final Action Date in effect according to the Department of State’s Visa Bulletin on the date you file your application for employment authorization; and
- Can demonstrate that compelling circumstances exist that would justify USCIS using its discretion to issue you an independent grant of employment authorization.
Your family members may also apply for employment authorization under category (c)(36). If approved, the validity period for their EADs may not extend beyond the period authorized for you, the principal beneficiary.
For an applicant to be eligible for an Employment Authorization Document (EAD) based on compelling circumstances, the applicant must meet the following eligibility requirements:
- The principal applicant is the principal beneficiary of an approved Immigrant Petition for Alien Workers (Form I-140) 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 at the time the applicant files the Application for Employment Authorization;
- The principal applicant has not filed an Application to Register Permanent Residence or Adjust Status;
- 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 (DOS)’s Visa Bulletin in effect at the time the applicant files 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.
Compelling Circumstances
The applicant must establish compelling circumstances for all initial requests. The regulations do not define compelling circumstances. Officers therefore have discretion on a case-by-case basis to determine whether compelling circumstances exist. The applicant should submit an explanation of the compelling circumstances supported by evidence with the application. In general, compelling circumstances are situations outside a principal applicant’s control that adversely affect the principal applicant’s ability to continue employment for the petitioning employer and justify the issuance of an EAD.
The following non-exhaustive examples illustrate how certain situations could lead to a finding that compelling circumstances exist.
Serious Illness and Disability
A principal applicant or their dependent faces a serious illness or disability that substantially changes employment circumstances, such as requiring them to move to a different geographic area for their or a dependent’s treatment, or the illness or disability otherwise reduces or adversely affects the principal applicant’s ability to continue their previously approved employment.
Leaving the United States would likely result in additional medical issues and interrupt the individual’s treatment plan and prognosis. A move to another part of the country to ensure proper medical care is just one example of compelling circumstances resulting from a serious illness or disability of the principal applicant or their family member.
Applicants in this situation or another situation involving serious illness and disability should provide an explanation supported by evidence such as medical records and any relevant information relating to their inability to continue in their nonimmigrant worker status.
Employer Dispute or Retaliation
A principal applicant is involved in a dispute regarding their employer’s alleged illegal or other forms of abusive conduct. The dispute may take the form of a whistleblower action, litigation, or other documented dispute. If the employer retaliated against the principal applicant, the applicant should submit evidence to substantiate the claim of employer retaliation, as evidence of retaliation may support a finding that compelling circumstances exist. Employer retaliation is not limited to a termination of employment. The retaliation may take any form that adversely affects the principal applicant’s ability to continue employment, including harassment.
Applicants involved in an employer dispute or claiming employer retaliation should provide an explanation supported by evidence such as complaint details, correspondence with the employer, or legal filings.
Other Substantial Harm to the Applicant
The principal applicant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and would suffer substantial harm as a result. This harm may be financial or may be due to an inability to return to their home country due to conditions there.
Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss. Job loss may be sufficient to establish financial hardship depending on the individual circumstances. For example, the loss of health insurance may rise to this level for a principal applicant or their dependents facing extended illness or requiring extensive medical treatment.
Applicants should provide an explanation supported by evidence such as financial records and bona fide cost estimates demonstrating the inherent financial hardship facing the applicant if made to depart the United States, coupled with specialty needs of the applicant or family members. Evidence in this example could also include the applicant’s priority date, as well as other factors such as school or higher education enrollment records, mortgage records, long-term lease records, or documentation regarding home country conditions, as applicable.
Significant Disruption to the Employer
Compelling circumstances need not involve termination of the principal applicant. A principal applicant who is unexpectedly unable to timely extend or change status to continue employment with the employer and has no other basis to continue that employment may be eligible for a compelling circumstances-based EAD if the principal applicant’s departure would cause the employer substantial disruption.
Applicants should provide an explanation supported by evidence from their employer that demonstrates that, due to the principal applicant’s knowledge or experience, their loss would negatively impact projects and result in significant monetary loss or other disruption to the employer.
Approval of an application for employment authorization based on compelling circumstances requires that the principal applicant is facing compelling circumstances and that they are unable to continue employment with the petitioning employer, and that due to the compelling circumstances, the result to the applicant is harm beyond that which is normally associated with job loss.
For example, reaching the maximum statutory or regulatory period of allowed nonimmigrant status does not, without compounding factors, constitute compelling circumstances. An officer may consider this factor in determining whether the applicant merits a favorable exercise of discretion.
USCIS generally may 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 with an approved immigrant visa petition in an oversubscribed visa category or chargeability area who has lived in the United States for a considerable period of time, and has school-aged children and a mortgage, may face compelling circumstances if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull the children out of school, and relocate to their home country. Note that not all of these elements (lengthy time in the United States, mortgage, and school-age children) are necessary for a case-by-case finding of compelling circumstances based on substantial harm to the applicant.
EAD based on compelling circumstances are complex and may need a legal counsel. If you want to learn more about this topic or about our legal services for the preparation and the filing of EAD Application based on Compelling Circumstances, do contact us at (+1) 202 600 7745, or email us at info@adhikarilaw.com