Applying for Employment Authorization in Compelling Circumstances (EAD)

Key Takeaways:

• USCIS offers temporary EADs for nonimmigrants facing compelling circumstances while waiting for immigrant visas.
• Eligibility requires specific nonimmigrant status, approved Form I-140, no available visa, and proof of compelling circumstances.
• Application involves completing Form I-765, paying the fee, and providing supporting evidence; renewals are possible annually.

Employment Authorization in Compelling Circumstances: How to Apply and Who Qualifies

Are you caught in the backlogs of immigrant visa applications but facing compelling circumstances that make it difficult to sustain yourself and your family in the U.S.? You may be eligible for a temporary Employment Authorization Document (EAD). This measure, provided by the United States Citizenship and Immigration Services (USCIS), allows certain nonimmigrants and their qualifying family members to lawfully work in the U.S. while waiting for their immigrant visas.

What Is Employment Authorization Under Compelling Circumstances?

USCIS can grant temporary employment authorization for up to one year if it determines that compelling circumstances justify the issuance. This is particularly useful for individuals and families in difficult situations, such as undergoing serious illnesses or facing retaliation from employers, that make maintaining lawful employment especially challenging.

Note that if you receive this type of EAD, you will no longer maintain your nonimmigrant status, although you will be in a period of authorized stay.

Eligibility Requirements for Employment Authorization

So, who can apply for an initial EAD under compelling circumstances?

• Nonimmigrant Status: You must be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, or in an applicable grace period, on the date you file the application for employment authorization.
• Approved Form I-140: You should be the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers.
• Visa Bulletin Dates: An immigrant visa should not be authorized for issuance based on your priority date, preference category, and country of chargeability, as per the Department of State’s Visa Bulletin on the date of your application.
• Compelling Circumstances: Finally, you must demonstrate compelling circumstances that would justify USCIS issuing an independent grant of employment authorization.

Your family members (spouse and children) may also apply for employment authorization under category (c)(36).

How to Apply for an EAD

Applying for an EAD under compelling circumstances involves several key steps to ensure your application is not rejected or delayed. Here’s a straightforward guide:

1. Complete the Form I-765: This is the Application for Employment Authorization. Make sure to go through the Instructions for Form I-765.
2. Pay the Filing Fee: Check the specific amount you need to pay under the Filing Fee section on the Form I-765 page.
3. Gather Supporting Evidence: Submit documents that prove your eligibility. These may include an approval notice for Form I-140, evidence of your nonimmigrant status, identification documents, and proof of compelling circumstances.

Supporting Documents Needed

For Principal Beneficiaries (Under Category (c)(35))

• Nonimmigrant Status: A current Form I-797 approval notice for Form I-129, or a Form I-94 showing your admission as an E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant.
• Identity: A government-issued ID with a photo, such as a passport, birth certificate with photo ID, visa issued by a foreign consulate, or national identity document with a photo.
• Visa Availability & Priority Date: An approval notice for Form I-140 or other evidence showing the priority date assigned to it.
• Compelling Circumstances: Medical documentation, evidence of employer retaliation, records showing harm or disruption (such as school enrollments, mortgage records), or evidence of significant disruption to your employer.

You should also include two identical, two-by-two-inch passport-style color photographs.

For Dependent Spouses or Children (Under Category (c)(36))

• Nonimmigrant Status: Form I-797 approval notice for Form I-129 or Form I-539, or Form I-94 showing your admission as a nonimmigrant.
• Identity: A government-issued ID with a photo (same documents as for principal beneficiaries).
• Approval of Principal’s EAD: An approval notice for Form I-765 filed by the principal beneficiary.
• No Felony Convictions: Certified copies of arrest reports, court dispositions, sentencing documents, and other relevant documents.
• Relation to Principal Beneficiary: Marriage certificate for spouses or birth certificate for children.

You must also include two identical, two-by-two-inch passport-style color photographs.

Translation Requirements

If any supporting documents are in a foreign language, submit a full English translation certified as complete and accurate by a competent translator.

Validity and Renewal of EAD

After USCIS approves your Form I-765, your EAD will be valid for one year. You can apply for renewal in one-year increments under specific conditions:

1. Apply Before Current EAD Expires: Ensure your renewal application is timely.
2. Visa Availability: You can renew if an immigrant visa is still not authorized for issuance, and the difference between your priority date and the Visa Bulletin’s Final Action Date is one year or less.
3. Compelling Circumstances: Continue to demonstrate that you or your dependent are experiencing compelling circumstances.

Dependent spouses or children must prove that the principal beneficiary’s renewal EAD was approved and their relationship to the principal beneficiary continues.

Change or Adjustment of Status

If your immigrant visa priority date becomes current while you are under a compelling circumstances EAD, you generally cannot file Form I-485 to adjust your status. Instead, request USCIS to notify the National Visa Center (NVC) for processing your immigrant visa application abroad.

Also, if a new Form I-129 is filed for you while working under a compelling circumstances EAD, you would need to apply for a visa and admission from outside the U.S. to begin work under the new classification.

For more detailed information, you can check the official instructions on USCIS’s NVC Processing page.

Avoid Immigration Scams

Beware of unauthorized practitioners who might offer to file EAD applications on your behalf for a fee. For authentic information and to protect yourself from scams, visit the USCIS page on Avoiding Scams.

Final Thoughts

The Employment Authorization Document based on compelling circumstances is a vital lifeline for nonimmigrants in the U.S. facing challenging situations. By ensuring you meet the eligibility criteria and correctly following the application process, you can maintain your livelihood and stay compliant with U.S. immigration laws. Always seek information from trustworthy sources to avoid scams and ensure your application is properly handled.

Learn Today:

Glossary of Immigration Terms

1. Employment Authorization Document (EAD):
   A temporary document issued by USCIS that allows certain nonimmigrants to lawfully work in the United States. It is particularly provided to individuals facing compelling circumstances while awaiting their immigrant visa.

2. Compelling Circumstances:
   Situations that justify the issuance of an EAD by USCIS, such as serious health issues, employer retaliation, or other significant hardships that make sustaining employment challenging.

3. Form I-140:
   The Immigrant Petition for Alien Workers, a form filed by an employer to petition for an individual to become a permanent worker in the U.S. An approved Form I-140 is essential for eligibility under compelling circumstances.

4. Nonimmigrant Status:
   A temporary immigration status allowing individuals to stay in the U.S. for specific purposes, such as work or study. Examples include E-3, H-1B, H-1B1, O-1, and L-1 statuses. Applicants must be in one of these statuses or in a grace period to apply for an EAD under compelling circumstances.

5. Visa Bulletin:
   A monthly publication by the Department of State that indicates when immigrant visa numbers are available for different preference categories and countries of chargeability. It is used to determine whether a visa can be issued based on one’s priority date.

This Article In A Nutshell:

Caught in visa backlog in the U.S. with pressing needs? Apply for an Employment Authorization Document (EAD) under compelling circumstances. USCIS can grant temporary work authorization for up to one year in challenging situations like illness or employer issues. Eligibility and application steps are crucial – avoid scams, stay informed.
— By VisaVerge.com