With the recent layoffs in the tech industry, companies and individuals are facing uncertainty in terms of how to retain legal status to remain in the U.S., while job searching. One option is the Compelling Circumstances EAD, which is a discretionary employment authorization measure that is meant to assist qualifying individuals by preventing the need to abruptly leave the United States.

Eligibility requirements:

• Be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or on a 60-day grace period on the date you file the application for employment authorization;
• The individual is the principal beneficiary of an approved Form I-140;
• The individual can establish that an immigrant visa is not available based on your priority date as per the Final Action Date which is in effect on the date you file your application for employment authorization; and
• The individual can demonstrate that compelling circumstances exist that would justify USCIS using its discretion to issue an independent grant of employment authorization.

Frequently Asked Questions

Can the individual begin working upon filing the Compelling Circumstances EAD?

• Work authorization does not begin until USCIS approves the person’s Form I-765, Application for Employment Authorization. Filing the Compelling Circumstances EAD is not a legal basis for work authorization.

Are the person’s dependents eligible for Compelling Circumstances EAD?

• Yes, family members are eligible for employment authorization.

What are circumstances that constitute “Compelling Circumstances”?

• Medical documentation to show you or your dependent are facing a serious illness or disability;
• Evidence that the employer has retaliated against you;
• Evidence of other substantial harm to the individual;
• Evidence of significant disruption to the employer; or
• Other evidence that demonstrates the person is experiencing compelling circumstances and
• The individual must not have been convicted of a felony or two misdemeanors.

What are circumstances that do NOT constitute “Compelling Circumstances”?

• Coming to the statutory limit on an individual’s nonimmigrant status unless you can show hardship
• Loss of job or being unemployed unless the individual can show hardship associated with the job loss
• Long wait times for an immigrant visa
• Mere home ownership and
• Dissatisfaction with one’s position or salary.

What happens when the person is on a Compelling Circumstances EAD and my priority date becomes current – can I adjust my status?

When the person starts working on a compelling circumstances EAD they will no longer maintain a “nonimmigrant status” but will be considered to be in a “period of authorized stay” thereby not accruing any unlawful presence in the United States as long as the EAD is valid. Accordingly, since the individual is not holding a nonimmigrant status, they will not be able to adjust their status in the United States when their priority date becomes current. Therefore, the individual will need to depart the United States and obtain an immigrant visa through consular processing. This can turn out to be problematic for families.

Can the individual change back to a nonimmigrant visa after they have used a Compelling Circumstances EAD?

If the individual is on a Compelling Circumstances EAD and they want to get back to nonimmigrant status, they must travel outside the United States, attend visa stamping at the consular office and then enter back into the U.S. in order to change back to a nonimmigrant visa. This is because on the I-140 employment-based EAD the individual is only in a period of authorized stay and NOT holding any nonimmigrant status.

Is there any way for the individual to change from an I-140 employment-based EAD back to a nonimmigrant status without dealing with the uncertainty of traveling outside the United States?

Depending on the unique circumstances of each individual, it is possible to file a Nunc Pro Tunc request to reinstate status in the United States requesting USCIS to issue a backdated I-94 if the person is able to prove “extraordinary circumstances” which are beyond the control of the applicant or the petitioner. USCIS has the discretion of whether to accept it. Nunc Pro Tunc is usually issued to bridge the gap for an extension of status case where the I-94 is bridged but not applicable for a change of status. If the gap exceeds 180 days, the individual could suffer a ban for 3 years.

Be aware of the pro and cons when filing for a Compelling Circumstances EAD. Using an experienced immigration attorney is a great way to ensure you are informed of the benefits and potential issues with various approaches. At ILBSG, we are here to give you the right advice for your particular situation. Please reach out to us today.