Compelling Circumstance EAD: What to know

For qualified individuals and their dependent spouses and children, USCIS may grant work authorizations (EAD) due to compelling circumstances. To qualify for a compelling circumstance EAD, an individual must 1) be the principal beneficiary of an approved I-140 (EB1, EB2, or EB3) without an immediately available green card (visa backlog) and 2) be in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status. Additionally, and of most importance, USCIS will require the principal applicant to demonstrate truly compelling circumstance(s) warranting the grant of a compelling circumstance EAD.

In light of the COVID-19 global pandemic and economic downturn, the frequency of individuals and families filing for compelling circumstances EADs will invariably increase. In that respect, it is important for individuals to recognize 1) how they and their family may qualify for compelling circumstance EADs and 2) the practical consequences of obtaining and remaining in the US-based on the filing and/or approval of a compelling circumstance EAD.

How and when do I Apply? What is the filing fee?

You must file a Form I-765 before the expiration of your current non-immigrant status (i.e. E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status), including any applicable grace period,  with a selection of category C(35) for principal applicant and C(36) for qualifying dependent spouse and/or child. USCIS requires a filing fee of $495 ($410 filing fee; $85 biometrics) for each EAD filing.

How long does the EAD last?

The EAD will be valid for one-year upon approval. Additionally, the principal beneficiary may seek renewals of this employment authorization for the principal beneficiary and qualifying dependent spouse and children in 1-year increments if 1) absent a current priority date, a compelling circumstance still exists or, 2) the difference between the principal beneficiary’s priority date and the relevant Final Action Date is 1 year or less (without having to show compelling circumstance). If filing for a compelling circumstance EAD extension, the compelling circumstance does not have to be the same compelling circumstance as that for the first or any prior compelling circumstance EAD approval.

Does a compelling circumstance EAD give me legal status? If not, how will it impact my ability to change status or re-enter the United States?

A compelling circumstance EAD does not grant legal status. In fact, working on a compelling circumstance EAD will generally void your current legal status as USCIS will consider you are no longer working pursuant to the terms of your non-immigrant visa. However, anyone who receives a compelling circumstance EAD will be considered in a period of authorized stay and will not accrue unlawful presence during the validity or pendency of a non-frivolous compelling circumstance EAD application.

An obvious consequence of obtaining a compelling circumstance EAD is that you are entitled to remain and work in the United States in a period of authorized stay. A less-than-obvious consequence is that while you are lawfully entitled to work and be present, you do not have legal non-immigrant status. As such, an individual on a compelling circumstance EAD cannot file an adjustment of status regardless of whether that be to an immigrant or non-immigrant visa.  In order to “refresh” a legal immigrant or non-immigrant status, an individual would be required to timely exit the United States for consular processing.

What types of compelling circumstances does the government consider?

Generally, USCIS will consider four categories of compelling circumstances: 1) Serious illness or disability faced by the nonimmigrant worker or his or her dependent; 2) employer retaliation against the nonimmigrant worker, 3) other substantial harm to the applicant; and 4) significant disruption to the employer.

By Ryan Wilck

Ryan is an attorney at Reddy & Neumann PC. Ryan began with the firm in 2012 as a law clerk and has continued with the firm as an attorney from 2014. His main practice covers immigrant visa petitions with skills and experience in various non-immigrant petitions as well as criminal issues.