USCIS Updates Policy Guidance on Nonimmigrant EADs in Compelling Circumstances

Under current regulations, nonimmigrants that are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker, are not automatically granted employment authorization in the United States. Despite the I-140 approval, these individuals must maintain their nonimmigrant status for potentially over a decade while they wait for a visa to become available. This means they must remain employed by a petitioning employer and file renewal applications every few years. If they are terminated from their job and unable to find a replacement petitioner in time, they often become ineligible to work in the United States and must complete their immigration process at a consulate abroad.

However, the regulations contain a provision which allows USCIS to grant employment authorization to these individuals if they fall into compelling circumstances. In a recent update to the USCIS Policy Manual, USCIS has elaborated on the process behind these regulations and laid out how an individual may seek such employment authorization. There are still a number of eligibility requirements, including that the individual must still be either in valid nonimmigrant status or an authorized grace period. Furthermore, there must be compelling circumstances, for example: a serious illness or disability, abusive or illegal conduct by an employer, or financial hardship. If an Employment Authorization Document (“EAD”) is granted in these circumstances, the spouse and children of the individual are eligible to apply for an EAD as well. These EADs would also grant the individual and their dependents authorized stay in the U.S., preventing them from accruing unlawful presence while they are valid.

While this regulation may prove very helpful for certain individuals, it’s disappointing that there are still so many requirements in place for people that may have spent many years working and making a life in the United States. At least, with this update to the policy manual, more individuals may become aware of their eligibility for such employment authorization.

If you think you may be eligible for this type of employment authorization and would like assistance in applying for it, please schedule a consultation with us today.