New options for laid-off Immigrant workers: Compelling Circumstance Work Permit

In this video, attorney Jacob Sapochnick discusses a new form of relief provided by USCIS, specifically for green card applicants who are facing compelling circumstances. Such individuals may request a renewable 1-year temporary work authorization (EAD) based on their “compelling circumstances,” by filing Form I-765 Application for Employment Authorization. Dependents may also request a compelling circumstances EAD.

If you would like to know more about who can apply for this work permit and eligibility, just keep on watching!

Overview

Employment Authorization Document (EAD) based on Compelling Circumstances

This temporary employment authorization may be provided to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions, and who are facing compelling circumstances, such as losing a job.

In order to qualify for a compelling circumstance employment authorization document (EAD), you must:

Be 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;
Be the principal beneficiary of an approved Form I-140;
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 Department of State’s Visa Bulletin on the date you file your application for employment authorization; and
Demonstrate that compelling circumstances exist that would justify USCIS using its discretion to issue you an independent grant of employment authorization.

What Compelling Circumstances may qualify?

DHS has provided four examples of situations that, depending on the totality of the circumstances, may be considered compelling and justify the need for employment authorization: These include but are not limited to (1) Serious illness or disability faced by the nonimmigrant worker or his or her dependent; (2) employer dispute or retaliation against the nonimmigrant worker; (3) other substantial harm to the applicant; and (4) significant disruption to the employer. Severe financial loss and other substantial harm to the applicant may also qualify.

How to Apply for a Compelling Circumstance EAD

Applicants seeking a compelling circumstance EAD must file Form I-765, Application for Employment Authorization, BEFORE the expiration of their current non-immigrant status, to request an initial grant of employment authorization under category (c)(35) or (c)(36). Applicants must receive their EAD from USCIS before they can begin working under the compelling circumstance employment authorization.

Can my dependent spouse and children qualify for a compelling circumstance EAD?

Yes. Qualifying dependent spouses and children of a principal beneficiary granted employment authorization, can apply for a compelling circumstance EAD under category (c)(36).

Validity of Compelling Circumstance EADs

EADs issued based on compelling circumstances are valid for a one-year period upon approval. The principal beneficiary may seek renewal of his or her EAD and their qualifying dependents in 1-year increments.

Renewals of Compelling Circumstance EADs

You may apply to renew your employment authorization (EAD) in one-year increments if you are:

The principal beneficiary of an approved Form I-140:
- File your renewal application before your current EAD expires and
- Can establish either 1 or 2 below:
  1. 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 on the date you file your EAD renewal application; and

and you are experiencing compelling circumstances that would justify USCIS using its discretion to issue you an independent grant of employment authorization.

The difference between your priority date and the relevant Final Action Date is one year or less. In this situation, you are not required to show compelling circumstances.

The dependent spouse or child if you:
- File your renewal application before your current EAD expires;
- Can establish that:
  - The principal beneficiary’s renewal EAD was approved (you may file your renewal application with the principal’s application but your application will not be approved until the principal’s application is approved), and
  - Your relationship to the principal beneficiary continues.

Note: Applicants cannot file their renewal application more than 180 days before their current EAD expires.

Does a compelling circumstance EAD provide legal status?

A compelling circumstance EAD on its own will not provide you legal status. However, individuals who receive a compelling circumstance EAD will be considered in a period of authorized stay and will not accrue unlawful presence during the validity period of the EAD or while the EAD application is pending.

This means that obtaining a compelling circumstance EAD will allow you to remain and work in the United States in a period of authorized stay, but you will not be provided a separate non-immigrant visa status.

One important caveat to consider for such individuals, is that once your priority date becomes current and a green card is available to you (pursuant to the Visa Bulletin), you will not be able to file for adjustment of status (green card) from inside of the United States. You will need to exit the United States and apply for your immigrant visa at a United States Consulate or Embassy abroad.

Conclusion

If you would like to know whether you qualify for a compelling circumstance EAD, we invite you to contact our office for a consultation.

Contact us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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