Compelling Circumstances Employment Authorization for Nonimmigrant Workers Facing Visa Backlogs

What the Compelling Circumstances EAD Is — and Is Not

This is a temporary, discretionary measure — not a right. USCIS may grant a one-year Employment Authorization Document (EAD) to qualifying workers who demonstrate both the statutory requirements and compelling circumstances that justify the independent grant of employment authorization. Importantly, using a compelling circumstances EAD ends your nonimmigrant status: while you will be in a period of authorized stay (and generally will not accrue unlawful presence while the EAD is valid or while a timely non-frivolous application is pending), you will no longer be maintaining your E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status.

Eligibility: Category (c)(35) — Principal Beneficiaries

You may apply for an initial EAD under (c)(35) if you meet all four requirements simultaneously:

• You are in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status (including in any applicable grace period) on the date you file the I-765;
• You are the principal beneficiary of an approved Form I-140;
• An immigrant visa is not currently authorized for issuance to you based on your priority date, preference category, and country of chargeability per the Final Action Dates in the Visa Bulletin on the date you file; and
• You can demonstrate that compelling circumstances exist that justify USCIS using its discretion to grant independent employment authorization.

Compelling circumstances may include: serious illness or disability affecting you or a dependent; employer retaliation; substantial harm to you or your dependents (evidenced by priority date, school enrollment, mortgage records, lease records, home country conditions); significant disruption to the employer; or other evidence that you are experiencing compelling circumstances. See the USCIS Policy Manual for the full analysis.

Eligibility: Category (c)(36) — Dependent Spouses and Children

Family members of a principal beneficiary granted (c)(35) authorization may apply for (c)(36) employment authorization. They must file Form I-765, establish their own nonimmigrant status (or, for renewal, that their current EAD was valid at filing), and show their relationship to the principal beneficiary and that the principal's (c)(35) was approved. EADs for dependents may not extend beyond the period authorized for the principal.

Required Evidence Tables

To establish (c)(35) eligibility, submit:

• Current Form I-94 or I-797 approval for I-129 showing E-3, H-1B, H-1B1, O-1, or L-1 status;
• Government-issued photo ID (passport biographic page, visa, national identity document);
• Copy of I-140 approval notice showing priority date and preference category;
• Documentation of compelling circumstances (medical records, evidence of retaliation, school or financial records, country condition reports, evidence of employer disruption, or other credible evidence);
• Certified copies of any arrest reports, court dispositions, or sentencing documents establishing no disqualifying felony or two-or-more-misdemeanor convictions;
• Two identical 2×2 inch passport-style color photos of yourself.

Renewing the EAD

You may renew in one-year increments if: (a) you are the principal beneficiary of an approved I-140; you file before the current EAD expires; and either (i) a visa is still not available AND the difference between your priority date and the Final Action Date is one year or less (no compelling circumstances showing required at renewal in this situation), OR (ii) you continue to demonstrate compelling circumstances. File no more than 180 days before expiration.

Change of Status and Adjustment of Status Limitations

Working under a compelling circumstances EAD prevents filing Form I-485 (adjustment of status) even when your priority date becomes current. You would instead need consular processing abroad. Additionally, if a new I-129 is filed while you are working under this EAD, an approved petition would be for a new visa/admission from outside the US — not a change of status or extension of stay inside the US.