On June 14th, 2023, the U.S. Citizenship and Immigration Services (USCIS) released policy guidance on the eligibility criteria for applications for employment authorization documents in compelling circumstances. Existing regulatory requirements under 8 CFR 204.5(p) determine applicant eligibility for employment authorization in compelling circumstances. Meanwhile, employers are obligated to verify the legal status of new hires using Employment Eligibility Verification Form I-9. U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) recently reminded employers that remote Form I-9 verification flexibilities will officially end on July 31st, 2023.

Employment Authorization Documents

An unexpired Employment Authorization Document (Form I-766) is one way employees may prove they are authorized to work in the United States for a specific time period. Form I-766 is included under List A in the USCIS’ Form I-9 List of Acceptable Documents. Applicants must file Employment Authorization Documents if they are:

  • authorized to work in the U.S. because of immigration status or circumstances (for example, as an asylee or refugee) and need evidence of employment authorization; or
  • required to apply for permission to work because they are applying to be a permanent resident, applying for asylum, or need permission from the USCIS as a nonimmigrant.

The USCIS provides temporary Employment Authorization Documents to certain nonimmigrants. These certain nonimmigrants are beneficiaries of approved employment-based immigrant visa petitions and their qualifying spouse and children. Certain nonimmigrants may also be in backlogs for immigrant visas and face compelling circumstances. The USCIS determines, at its discretion, what compelling circumstances justify issuing employment authorization documents.

Guidance on Employment Authorization in Compelling Circumstances

The USCIS’ guidance on Employment Authorization Documents eligibility covered compelling circumstances for principal applicants and their dependents. Additionally, the guidance provides a non-exhaustive list of situations that qualify as compelling circumstances. These include serious illness and disability or employer dispute or retaliation. Compelling circumstances also include other substantial harm to the applicant or significant disruption to the employer. Eligible applicants for Employment Authorization Documents must meet the following requirements:

    • they are the principal beneficiary of an approved Form I-140 in either the first, second, or third employment-based preference category;
    • the principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765;
    • they have not filed an adjustment of status application;
    • there is no immigrant visa available based on the applicant’s priority date when they file Form I-765;
    • the applicant and their dependents provide the required biometrics;
    • both applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
    • the USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances.

Evidence of Compelling Circumstances

Meanwhile, the USCIS provided details on what evidence an applicant could submit to demonstrate a compelling circumstance. Evidence may include school enrollment records, mortgage records, or long-term lease records to show they have lived in the U.S. for a long time with an approved visa petition. Evidence of job loss as a compelling circumstance may include a sale of a home, pulling children out of school, or relocation to a home country.