When a foreign national applies to adjust status to become a permanent resident, he or she also has the option of applying for Employment Authorization (EAD, Form I-765). However, the Adjustment of Status Application can be filed only if the individual’s priority date has been reached. (The priority date is the filing date that starts the green card process.) For individuals born in India, China, and a few other countries, there is a long wait. For example, for persons born in India, the wait is currently more than 10 years in the Advanced Degree and Bachelor’s and Skilled Level categories.
Without the ability to apply to adjust status, the foreign national is at risk, particularly if subject to a layoff from an H-1B job. Unless the foreign national in these circumstances finds a new job or a new status, he or she will have to leave the United States within 60 days or before the end of the current authorized stay, whichever period is shorter. Needless to say, this also hurts employers.
In an attempt to resolve this problem, the USCIS in 2017 established a “compelling circumstances” category for the filing of initial and renewal applications for EADs. If “compelling circumstances” apply, the foreign national can remain in the United States while the application is pending and for the period of employment authorized by the EAD.
Unfortunately, there are unreasonable delays at the EAD application stage, as well. Depending on which Service Center is processing the application, it can take five to almost 15 months for approval of an EAD. Meanwhile, the foreign national cannot be employed in the United States.
The new guidance issued by the USCIS on “compelling circumstances” EADs provides helpful information that may mitigate the delays somewhat. The following is a summary:
Who is eligible for a compelling circumstances EAD
- The principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the first, second, or third employment-based preference category.
- An individual who is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when the Form I-765 is filed.
- Anyone whom the USCIS in its discretion determines demonstrates compelling circumstances that justify issuance of employment authorization.
In addition, the following conditions apply:
- The principal applicant must not have filed an adjustment of status application.
- An immigrant visa must not be available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when the Form I-765 is filed.
- The applicant and dependents must provide biometrics as required.
- The applicant and dependents must not have been convicted of a felony, or two or more misdemeanors.
The guidance indicates that compelling circumstances can include “serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer.”
Proof of compelling circumstances
The applicant may submit with the I-795 application proof that he or she “has lived in the United States for a significant amount of time… such as school or higher education enrollment records, mortgage records, or long-term lease records…” Compelling circumstances also “could include, if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull their children out of school, and relocate to their home country.”