Foreign nationals with H-1B visas rely on their employment to remain in the US. H-1B holders are technically defined as nonimmigrants, but many have approved I-140 applications and are waiting for their green card. 

This nonimmigrant status puts them in a precarious and even dangerous position if they lose their jobs. In most cases, they must either find new employment that meets their visa requirements or return to their country of origin within 60 days, potentially risking their green card. However, a third option is available in rare circumstances: nonimmigrants can apply for a “compelling circumstances” Employment Authorization Document (EAD) to remain in the country for one year after their H-1B grace period ends. 

While EADs have been available for years, they were difficult to access, and approval rates have been low. However, USCIS has recently issued new guidelines that could improve compelling circumstances EAD approval rates for people in a position of last resort. 

New Guidelines Make Compelling Circumstances EADs Easier to Access

Before USCIS’ June policy announcement, EADs issued for compelling circumstances were based on 8 CFR 204.5(p) of the Code of Federal Regulations. The law states three factors that make someone potentially eligible for employment authorization: 

• The applicant must be in E–3, H–1B, H–1B1, O–1, or L–1 nonimmigrant status or be the family member beneficiary of a person with this status.
• The applicant has an approved I-140 but is not yet eligible for a green card due to their priority date. 
• The applicant demonstrates compelling circumstances that justify the issuance of employment authorization, determined on a case-by-case basis at USCIS’ discretion. 

This vague regulation gave USCIS little guidance on what constituted a “compelling” circumstance, leading to a significant denial rate. 

The new guidelines are intended to clarify what constitutes a genuinely compelling situation. In particular, USCIS has added an entirely new chapter to its policy manual on employment authorization to discuss what makes an applicant eligible for these EADs. It provides a non-exhaustive list of reasons that may be considered compelling enough to warrant employment authorization. The new instructions should reduce application denials due to lack of clarity and help potential applicants determine whether their circumstances meet USCIS criteria. 

Reasons Compelling Circumstances EADs May Be Granted

USCIS policy now defines compelling circumstances as “situations outside a principal applicant’s control that adversely affect the principal applicant’s ability to continue employment for the petitioning employer and justify the issuance of an EAD.” It goes on to provide example situations that may meet this standard, including:

• Serious illness or disability: Any disability or illness that prevents the primary applicant from being able to continue their previously approved employment may constitute grounds for an EAD. The ill or disabled party may be the primary beneficiary or one of their dependents if they must move to receive medical care.  
• Disputes with or retaliation by the employer: If a nonimmigrant worker is involved in a documented dispute, such as a whistleblower action, and is retaliated against or loses employment, they may be eligible for an EAD.
• Substantial harm to the applicant: If an applicant cannot extend or maintain their visa status but leaving the country would cause them significant financial or physical harm or risk, they could receive an EAD.
• Serious disruption to the employer: If a worker cannot extend their nonimmigrant visa, but their departure from the country would cause significant monetary loss or other disruption to their employer, they may be eligible for an EAD. 

This non-exhaustive list does not rule out other reasons for EAD eligibility. Instead, it provides a standard against which USCIS may judge whether a given applicant’s situation is suitably compelling to justify issuing an EAD. 

Applying for EADs With Litwin & Smith

While the new policy guidelines may improve EAD approval rates, the application process remains arduous. H-1B beneficiaries and other eligible nonimmigrants in a position of last resort should seek the assistance of skilled immigration attorneys like the experts at Litwin & Smith. Our experienced lawyers have more than 50 years of experience supporting prospective immigrants and their employers during the visa and EAD application process. Schedule your consultation to discuss your concerns and discover whether you may be eligible for a compelling circumstances EAD under the new guidelines.