The United States Citizenship and Immigration Services published policy guidance on eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in exigent circumstances based on existing regulatory requirements at 8 CFR 204.5(p ).

In order for an applicant to be eligible for an initial EAD based on exigent circumstances, they must meet the following eligibility requirements:

• The principal applicant is the principal beneficiary of a Form I-140, Immigrant Petition for Alien Worker, approved in either the first, second, or third employment-based preference category;
• The principal applicant has valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or is in an authorized grace period when filing Form I-765, Application for Employment Authorization;
• The principal applicant has not filed an application for adjustment of status;
• An immigrant visa is not available to the principal applicant based on the applicant's priority date in accordance with the applicable Final Action Date in the US Department of State Visa Bulletin in effect when Form I-765 is filed;
• The applicant provides biometric data as required;
• The applicant has not been convicted of one felony or two or more misdemeanors; and
• USCIS determines, at its discretion, that the principal applicant demonstrates compelling circumstances that warrant the issuance of the employment authorization.

The guidance covers exigent circumstances for primary applicants and their dependents, and provides a non-exhaustive list of situations that could lead to a finding that exigent circumstances exist, including serious illness and disability, employer disputes or retaliation, other substantial harm to the applicant, or significant disruption to the employer.

The guidance also provides details about the evidence that an applicant might submit to demonstrate one of these compelling circumstances. For example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or visa-charging area, who has lived in the United States for a substantial period of time, could submit evidence such as records school or higher education enrollment records, mortgage records, or long-term lease records, to support a potential finding of exigent circumstances. Exigent circumstances could include if, due to job loss, the family is forced to sell their home at a loss, take the children out of school, and move back to their home country.

For more information about these exigent circumstances EADs, see the policy alert (PDF, 282.22 KB). See also the resource Options for Nonimmigrant Workers After Termination of Employment, for more evidence on options for maintaining a period of authorized stay in the United States. visit the page Feedback on the Policy Manual to provide feedback on this update.