USCIS Provides Guidance on Eligibility for Employment Authorization Documents (EADs) Based on Compelling Circumstances

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Earlier this month, USCIS published guidance laying out the eligibility criteria for Employment Authorization Documents (EADs) based on compelling circumstances. This employment authorization may be provided to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions and their qualifying spouse and children, and who are caught in the continually expanding backlogs for immigrant visas and are facing compelling circumstances. This stopgap measure is intended to address certain particularly difficult situations, including those that previously may have forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States.

  • Category (c)(35) is for principal beneficiaries of approved Form I-140s who are in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status and are applying for an initial grant of employment authorization based on “compelling circumstances,” or a renewal of such authorization.

  • Category (c)(36) is for qualifying dependent spouses and children of a principal beneficiary granted employment authorization under category (c)(35).

USCIS may grant employment authorization and issue an Employment Authorization Document (EAD) in these two categories for up to one year if we determine that there are compelling circumstances that justify issuing employment authorization.

NOTE: USCIS considers an applicant with a valid EAD based on compelling circumstances to be in a period of authorized stay by the Secretary of Homeland Security. If you receive a compelling circumstances EAD, and begin working based on this EAD, you will be in a period of authorized stay, but you will no longer be maintaining your nonimmigrant status. However, you generally will not accrue unlawful presence in the U.S. while the EAD is valid or, if you filed a non-frivolous application on time, while your application is pending.

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