I-140 EAD Based on Compelling Circumstances – Everything You Need to Know

The I-140 EAD rule was introduced back in 2016 as part of a final rule entitled “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” [commonly known as the “High-Skilled” Final Rule] and, as a result, USCIS amended its regulations to allow certain nonimmigrants with approved Form I-140 petitions to apply for an independent employment authorization document (EAD) provided the individual demonstrates “compelling circumstances.”   This USCIS final rule became effective on January 17, 2017.

Even though this rule has been in effect for many years, USCIS only recently (June 14, 2023 – link to USCIS alert) provided additional guidance on eligibility and, specifically, how to meet the “compelling circumstances” criteria.   This alert is intended to put together a list of eligibility requirements and frequently asked questions.   We should caution that the I-140 EAD is best used as a temporary stop-gap option to remain and work in the U.S. for a very limited period of time (generally, 1 year) and not as a long-term solution to be able to remain in the U.S. and work while waiting for a current priority date and filing I-485.

I-140 EAD Eligibility Criteria – Compelling Circumstances

According to 8 CFR §204.5(p), to be eligible for a compelling circumstances EAD, the applicant must satisfy the following criteria:

• be the primary beneficiary of an approved I-140 petition for classification under the EB-1, EB-2 or EB-3 visa categories;
• be in the U.S. in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date the I-140 EAD application is filed;
• show that a visa number is not available by demonstrating that the applicant’s priority date is not current according to the Final Action Date in effect at the time the application is filed; and
• the principal beneficiary must demonstrate compelling circumstances.

Note further that an individual will not be eligible for a compelling circumstances EAD, including renewal, if the individual has been convicted of any felony or two or more misdemeanors.

What Are Compelling Circumstance?

Compelling circumstances are considered to be outside a worker’s control that would allow USCIS to exercise discretion in granting employment authorization, on a case-by-case basis, given the “totality of the circumstances.”   While USCIS has not defined “compelling circumstances” in its final rule, it has provided some examples of situations that may be considered compelling and justify the need for employment authorization.  These are some illustrations and examples.

Serious Illnesses or Disability

The applicant or a dependent faces a serious illness or disability that substantially changes employment circumstances, such as requiring them to move to a different geographic area for their or a dependent’s treatment, or the illness or disability otherwise reduces or adversely affects the principal applicant’s ability to continue their previously approved employment.

Leaving the U.S. would likely result in additional medical issues and interrupt the individual’s treatment plan and prognosis. A move to another part of the country to ensure proper medical care is just one example of compelling circumstances resulting from a serious illness or disability of the principal applicant or their family member.

Applicants in this situation or another situation involving serious illness and disability should provide an explanation supported by evidence such as medical records and any relevant information relating to their inability to continue in their nonimmigrant worker status.

Employer Dispute or Retaliation

The applicant is involved in a dispute regarding their employer’s alleged illegal or other forms of abusive conduct.  The dispute may take the form of a whistleblower action, litigation, or other documented dispute.  If the employer retaliated against the principal applicant, the applicant should submit evidence to substantiate the claim of employer retaliation, as evidence of retaliation may support a finding that compelling circumstances exist. Employer retaliation is not limited to a termination of employment. The retaliation may take any form that adversely affects the principal applicant’s ability to continue employment, including harassment. Applicants involved in an employer dispute or claiming employer retaliation should provide an explanation supported by evidence such as complaint details, correspondence with the employer, or legal filings.

Other Substantial Harm to the Applicant

The applicant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and would suffer substantial harm as a result. This harm may be financial or may be due to an inability to return to their home country due to conditions there.

Financial hardship to the principal applicant may rise to the level of compelling circumstances when coupled with circumstances beyond those typically associated with job loss. Job loss may be sufficient to establish financial hardship depending on the individual circumstances. For example, the loss of health insurance may rise to this level for a principal applicant or their dependents facing extended illness or requiring extensive medical treatment.

Applicants should provide an explanation supported by evidence such as financial records and bona fide cost estimates demonstrating the inherent financial hardship facing the applicant if made to depart the United States, coupled with specialty needs of the applicant or family members. Evidence in this example could also include the applicant’s priority date, as well as other factors such as school or higher education enrollment records, mortgage records, long-term lease records, or documentation regarding home country conditions, as applicable.

Significant Disruption to the Employer

A principal applicant who is unexpectedly unable to timely extend or change status to continue employment with the employer and has no other basis to continue that employment may be eligible for a compelling circumstances-based EAD if the principal applicant’s departure would cause the employer substantial disruption.

Applicants should provide an explanation supported by evidence from their employer that demonstrates that, due to the principal applicant’s knowledge or experience, their loss would negatively impact projects and result in significant monetary loss or other disruption to the employer.

Approval of an application for employment authorization based on compelling circumstances requires that the principal applicant is facing compelling circumstances and that they are unable to continue employment with the petitioning employer, and that due to the compelling circumstances, the result to the applicant is harm beyond that which is normally associated with job loss.

For example, reaching the maximum H-1B limit of six years, without compounding factors, constitute compelling circumstances, but can be an argument in building the compelling circumstances case.  Similarly, USCIS generally does not consider unemployment or job loss, in and of itself, to be a compelling circumstance unless the principal applicant can show additional circumstances that compound the hardship ordinarily associated with job loss.

As an example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area who has lived in the U.S. for a considerable period of time, and has school-aged children and a mortgage, may face compelling circumstances if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull the children out of school, and relocate to their home country. Note that not all of these elements (lengthy time in the United States, mortgage, and school-age children) are necessary for a case-by-case finding of compelling circumstances based on substantial harm to the applicant.

Note: USCIS adjudicators will look at various factors, including all factors identified by the applicant, and may consider whether the evidence supports providing compelling circumstances employment authorization.  USCIS will not, however, consider a long wait for an immigrant visa to constitute a compelling circumstance on its own. Similarly, home ownership, notable academic qualifications, or dissatisfaction with a position or salary, standing alone, do not rise to the level of a compelling circumstance. Furthermore, an interest in entrepreneurship standing alone cannot support an employment authorization request based on compelling circumstances. However, any one of these situations could rise to the level of compelling circumstances in combination with other circumstances.

Compelling Circumstances I-140 EAD Validity Term, Renewals and Employment Authorization During Application and Renewals

The validity of the I-140 EAD is limited to one year; it can be renewed in one-year increments as part of additional renewal applications.

At the time of renewal, the applicant must file the application prior to the expiration of his or her current employment authorization. Applicants must be in the United States when applying for the benefit and must demonstrate that they continue to face compelling circumstances and establish that a visa number is not available based on their preference category OR the difference between their priority date and the relevant Final Action date is one year or less (eligibility does not require compelling circumstances).

Unfortunately, the I-140 EAD filing itself does not authorize employment — the I-140 EAD must be approved and valid for employment to be authorized.   Similarly, I-140 EAD pending renewals are not eligible for auto-extension of employment authorization beyond the underlying EAD validity term — as a result, early renewals are strongly recommended to minimize or avoid a gap in employment authorization.

Dependents’ Eligibility for I-140 EAD

A dependent spouse and children of the principal beneficiary may apply for a compelling circumstances EAD, provided they are in nonimmigrant status at the time the principal beneficiary applies for the employment authorization and provided that the principal beneficiary has been granted employment authorization and that work authorization has not been terminated or revoked.  Such family members may apply for employment authorization concurrently with the principal beneficiary, but they cannot be granted employment authorization until the principal beneficiary has been granted work authorization. The validity period of employment authorization granted to the family members may not extend beyond the validity period of employment authorization granted to the principal beneficiary.

Similar to the primary applicant, a spouse or child who files an application for a compelling circumstances-based EAD must provide biometrics and must not have been convicted of a felony or two or more misdemeanors.

Impact on Nonimmigrant Status and Eligibility to File I-485

This is perhaps the biggest downside to getting a compelling circumstance EAD.     While applicants must have a lawful nonimmigrant status at the time they apply, such applicants will generally lose that status once they engage in employment pursuant to the EAD.      I-140 EAD applicants will generally not accrue unlawful presence during the validity period of the EAD or during the pendency of a timely filed and non-frivolous application as this will be considered a period of “authorized stay.”     Similarly, if the applicant has spouse or children on dependent status, such dependents will need to file their own I-140 EAD applications in order to be in their own “authorized stay.”

However, a period of “authorized stay” is not a valid nonimmigrant status and, as a result, I-140 EAD holders are generally unable to file an application to change or adjust status from within the U.S.    If, for example, an I-140 EAD holder becomes eligible to file I-485 as a result of favorable forward movement in the Visa Bulletin cutoff dates, they will NOT be able to file I-485 Application to Adjust Status because they are not in lawful nonimmigrant status.  Thus, a compelling circumstances EAD applicant who uses the EAD for work may be ineligible to apply for adjustment based on an employment-based immigrant classification unless an exception, such as INA §245(k), applies.

As a result, the I-140 EAD may be a temporary solution but for applicants who are hoping to file I-485 once their priority date becomes current getting and using I-140 EAD may be a disadvantage.    There are strategies that may be used to attempt to return to the U.S. on nonimmigrant status (such as H-1B) and then become eligible to file I-485.

Can I-140 EAD Holders Travel Internationally?

The I-140 EAD grant does not allow return to the U.S.   As a result, I-140 EAD holders who wish to travel abroad must have a different visa or authorization to enter the U.S.

Conclusion

We caution our readers to consider carefully all of their immigration options before they decide to move forward with an I-140 EAD based on compelling circumstances.     Our experience has been that USCIS applies the eligibility requirements fairly rigorously and, as discussed above, the I-140 EAD may not be ideal for a number of applicants even if they may be able to make a case for it.     For example, a laid off H-1B employee with prospects of new employment may be better off transferring their H-1B (within the applicable employment or grace period) before deciding to pursue I-140 EAD.      We urge potential I-140 EAD applicants to consider the overall impact on their status and situation before applying for the I-140 EAD even if they feel that they may be able to make a strong case.

Our office is happy and available to assist with I-140 EAD case analysis and with USCIS submissions.  Please do not hesitate to contact us or consider our consultation options.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.