Employment-based immigrants may wait years for a green card to become available. In the meantime, their ability to stay in the U.S. may depend on a temporary nonimmigrant status, such as H-1B, L-1, O-1, or H-1B1. This works well when everything goes to plan and the individual can continue extending their status while waiting for an immigrant visa. But if they face a situation where they cannot continue employment at the place allowed by their non-immigrant visa, they may lose their immigration status.
At Warren Law Firm, we help clients apply for compelling circumstances EADs (employment authorization documents) for temporary work authorization while waiting for an immigrant visa to become available. This type of EAD is limited and highly fact-specific, so it’s important to work with an immigration attorney to explore your options.
Compelling Circumstances EAD Meaning
A compelling circumstances EAD is a temporary work authorization solution for some employment-based visa holders. It was created to help individuals who have reached an important step in the green card process but can’t move forward yet because an immigrant visa is not available. Additionally, they must not have filed adjustment of status.
Who Qualifies for a Compelling Circumstances EAD?
Qualifying for a compelling circumstances EAD involves meeting several important requirements. Applicants must have an approved Form I-140 and either be in an eligible nonimmigrant classification or in an authorized grace period when they apply. They must also be able to prove compelling circumstances, which is perhaps the most challenging part of the entire process.
Compelling circumstances EAD applicants should also be able to show that no immigrant visa is immediately available to them, based on their priority date, preference category, or country of chargeability. This requirement is important because this type of EAD is specifically intended for those who are waiting in the employment-based green card process, not those who can immediately qualify.
Approved I-140 Requirements
An approved Form I-140 is a critical part of a compelling circumstances EAD. This is the immigrant petition used in many employment-based green card cases, and having an approved I-140 indicates that USCIS has approved the immigrant petition.
But having an approved I-140 doesn’t automatically grant a green card, nor does it provide work authorization or allow them to remain in the U.S. indefinitely. Approved applicants still typically have to wait for a visa number to become available.
Nonimmigrant Categories Eligible for a Compelling Circumstances EAD
Certain nonimmigrant categories could qualify for a compelling circumstances EAD, including E-3, H-1B, H-1B1, O-1, or L-1 categories. They may also be in an authorized grace period for one of these classifications.
Compelling circumstances EADs are not available to all immigrant workers. Those with a pending family-based case, on a tourist visa, or without lawful status generally do not qualify.
What Counts as Compelling Circumstances?
There’s no comprehensive list that covers all compelling circumstances that may qualify for this type of EAD. USCIS reviews the total facts and evidence of each case before making a decision. Common examples of compelling circumstances include serious illness, disability, employer retaliation, substantial harm to the applicant, or a disruption to the employer.
Consider, for example, a worker who reports unsafe work conditions and is subsequently retaliated against by their employer. Because they face drastically cut hours or termination, they cannot keep working in the same sponsored position, but they do need income to support their family. A compelling circumstances EAD may allow them to work for another company while waiting for an immigrant visa to become available.
What Documents May Support a Compelling Circumstances EAD
The documents you need to request a compelling circumstances EAD depend largely on why you are requesting an EAD. A strong application should detail the hardship you’re claiming and back up that claim with evidence.
For example, if you or a family member have a serious illness or disability that prevented you from staying at your current role, medical records can help prove the extent of the illness or disability. Cases involving retaliation or workplace disputes may benefit from employer letters, termination notices, and legal filings. You may also want proof of family hardship, including financial records, mortgage or lease documents, and school records for children.
If you are requesting a compelling circumstances EAD because of significant disruption to your employer, provide evidence of the importance of your role and why replacing you would be difficult.
Risks of a Compelling Circumstances EAD
A compelling circumstances EAD can protect an applicant’s immigration options in the future and allow them to remain in the country, but it does come with risks. Other options you may want to look into include changing employers, filing an H-1B transfer, using a grace period, changing status, or pursuing another immigration option.
Risks may include losing nonimmigrant status, complicating your future adjustment of status efforts, or limiting travel options. This type of EAD does not solve all immigration problems, so it’s important to have a thorough strategy with an immigration lawyer in place before applying.
Plan Your Next Steps With Warren Law Firm
A compelling circumstances EAD is a narrow form of relief for very specific groups of applicants, and it’s important to verify that it’s the right option for you before proceeding. Let’s discuss this option and other potential routes. Call us at 415-362-2906 or get in touch online now.
