Can I Apply For a Compelling Circumstance EAD?

July 05, 2023
Courtney Wachal

A compelling circumstance EAD is a temporary work authorization that may be issued by USCIS, in its discretion, to certain non-immigrants and their dependents. These individuals must meet a specific criterion, including being the beneficiaries of approved employment-based immigrant visa petitions (e.g. EB I-140). A compelling circumstance EAD will also provide those individuals with a period of authorized stay in the U.S. It is intended to assist these individuals in being able to remain in the U.S. and maintain their work authorization.

What is the purpose of this compelling circumstances EAD?

This purpose of this EAD is to provide a stopgap measure for “certain particularly difficult situations.” For example, it may apply to individuals who were on the path to obtaining LPR (lawful permanent residency) status who had to abruptly stop working and leave the U.S because their priority date was not yet current and they were unable to continue extending their current visa status.

How do I know if I am eligible to apply compelling circumstance EAD?

If you meet all the below criteria, you may be eligible for this option.

  1. 1. You in the U.S. on a valid O-1, H-1B, H-1B1, E2 or L-1 nonimmigrant status
  2. 2. You are the principal beneficiary of an approved I-140
  3. 3. Your priority date is not yet current based on the final action date chart on the DOS Visa Bulletin
  4. 4. You do not yet have a filed adjustment of status petition
  5. 5. You have never been convicted of any felonies and no more than 2 misdemeanors
  6. 6. You can demonstrate to USCIS reasons why you can’t continue your employment or maintain your valid nonimmigrant status.

Can my dependents get this EAD?

Yes, your dependents would be eligible for this work authorization as well. Their eligibility would be based on your approved compelling circumstance.

What does USCIS consider to be a compelling circumstance?

There are no specific regulations that define what constitutes a compelling circumstance. As such, USCIS officers are able to use their discretion on a case-by-case basis to determine whether they think you meet a compelling circumstance.

Generally, these compelling circumstances should be something that is beyond your control that adversely affect you being able to continue being employed by the petitioning employer and therefore justify you needing this work authorization.

Below are examples of what may be determined by USCIS as reasons to issue a compelling circumstance EAD. Please note that you will also have to provide evidence and an explanation of why this meets a compelling circumstance.

  • Serious Illness or Disability
    • The principal applicant or their dependents have a serious illness or disability that substantially changes employment circumstances
  • Employer Dispute or Retaliation
    • The principal applicant is involved in a dispute regarding your employer’s alleged illegal or abusive conduct
  • Other Substantial Harm to the Applicant
    • The principal applicant is unable to timely extend or maintain status and that would result in substantial harm (such as financial harm or inability to return to home country due to their home country’s conditions)
  • Significant Disruption to Employer
    • If the principal applicant is unexpectedly unable to timely extend or change status to continue employment with the current employer and employer can demonstrate that would cause them substantial disruption

If I receive this compelling circumstance EAD what is the validity period and am I able to renew?

The validity period for an initial employment authorization is up to one year. You may be eligible to renew in one-year increments if: 1) your I-140 is still approved 2) the compelling circumstances still exist and an immigrant visa is still not available based on the visa bulletin but the renewal application must be filed prior to your current compelling circumstance EAD expiring OR the difference between the priority date and the Final Action date for your I-140 category is one year or less on the date the renewal application was filed

Will I remain in lawful nonimmigrant status?

No, this EAD does not provide nonimmigrant status. However, you are considered to be in valid period of authorized stay in the U.S. and would be unlikely to accrue unlawful presence during the validity of the EAD or the timely filed application.

If you would like additional clarity on this topic or you believe that you are eligible for a compelling circumstance EAD, please reach to one of our employment based  attorneys for assistance.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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