USCIS Policy for Employment Authorization Green Card Applicants

By Sanwar Ali:

The United States Citizenship and Immigration Services (USCIS) has recently updated its policy guidance concerning the issuance of an Employment Authorization Document (EAD) under compelling circumstances for immigrant visa applicants. This article aims to unravel the significant aspects of the guidance, eligibility criteria, and the implications for spouses and dependents.

Table of Contents

1. Introduction
2. Eligibility Criteria
3. Compelling Circumstances
4. Examples of Compelling Circumstances
5. Validity of EAD
6. Spouse and Children
7. Renewal Applications
8. Impact on Green Card Applicants
9. Conclusion

Introduction

The USCIS has shared clarifications on the eligibility criteria for initial applications and renewals for EADs under compelling circumstances. This updated policy guidance is based on existing regulatory requirements.

Eligibility Criteria

To qualify for an EAD under compelling circumstances, applicants must satisfy several conditions:

• The main applicant should be the primary beneficiary of an approved Form I-140 immigrant petition in either the first, second, or third employment-based preference category.
• The main applicant should be in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or an authorized grace period when they apply for Form I-765.
• The main applicant should not have filed an adjustment of status application.
• An immigrant visa should not be available to the main applicant based on their priority date according to the relevant Final Action Date in the U.S. State Department's Visa Bulletin when they apply for Form I-765.
• The applicant and their dependents must provide biometrics as required.
• The applicant and their dependents should not have been convicted of a felony or two or more misdemeanors.
• USCIS must determine that the main applicant shows compelling circumstances that justify the granting of employment authorization.

Compelling Circumstances

The EAD based on compelling circumstances is discretionary and temporary. It is designed to address exceptionally challenging situations. These might include serious illness and disability, employer disputes and retaliation, and other harms to the applicant or an employer.

Examples of Compelling Circumstances

Serious Illness and Disability

Compelling circumstances could arise from a serious illness or disability that significantly alters employment circumstances. For instance, they might need to relocate to a different geographic area for treatment, or the illness or disability might impact their ability to continue with their previously approved employment.

Employer Dispute or Retaliation

An applicant could be in a dispute regarding their employer's alleged illegal or abusive conduct. The dispute might involve a whistleblower action, litigation, or other documented dispute. If the employer retaliated against the main applicant, the retaliation could support a finding of compelling circumstances.

Other Substantial Harm to the Applicant

The applicant might be unable to timely extend or maintain status or obtain another nonimmigrant status and would suffer substantial harm as a result. This harm could be financial or due to an inability to return to their home country due to conditions there.

Significant Disruption to the Employer

Compelling circumstances could exist even if the main applicant is not terminated. If the applicant is unexpectedly unable to timely extend or change status to continue employment with the employer and has no other basis to continue that employment, they may be eligible for an EAD based on compelling circumstances.

Validity of EAD

USCIS may grant initial employment authorization based on compelling circumstances for up to 1 year.

Spouse and Children

The spouse and children of a nonimmigrant who receives an EAD based on compelling circumstances are also eligible to apply for an EAD if the qualifying relationship exists both at the time of filing and adjudication.

Renewal Applications

EADs based on compelling circumstances may be renewed in 1-year increments. A renewal application must be filed before the expiration of the previous EAD.

Impact on Green Card Applicants

The changes brought about by the USCIS policy guidance may have significant implications for green card applicants. This policy provides a temporary solution for those on the path to obtaining lawful permanent residence but who otherwise may have been forced to stop working and leave the United States.

Conclusion

With the recent USCIS policy guidance, the U.S. government has provided a potentially life-changing opportunity for those facing compelling circumstances. It is crucial for potential applicants to understand the nuances of the policy and its impact on their future in the U.S.

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