What is a Hardship Employment Authorization Document?

On June 15, USCIS announced the release of a new criteria guide for exigent circumstances employment applications in the United States, in which foreign nationals will find the eligibility requirements for Form I-765 (Application for Employment Authorization).

Today, in Jaskot Law We will discuss what an Employment Authorization Document for exigent circumstances is and what the changes are. If you are already looking for apply for a work permitwe can help you. Contact us at +1 (410) 235-6868 or via email by using [email protected].

What is a Hardship Employment Authorization Document?

A Compelling Circumstances Employment Authorization or authorization document is a temporary work permit granted to certain non-immigrants for a period of time. nonimmigrants and their spouses or dependent children who are facing difficult situations and are caught in continuing delays in the processing of their work visas.

It is important to note that upon commencing work under this authorization, applicants lose their nonimmigrant status. However, generally, unlawful presence in the United States will not accrue as long as the work permit is valid or as long as an application has been timely filed.

Categories of the Employment Authorization Document for Prevailing Circumstances

The Employment Authorization Document for Compelling Circumstances is granted in two categories:

• Category (c)(35): Applies to principal beneficiaries who have an approved immigrant visa petition (Form I-140) and are residing in the United States under the nonimmigrant status E-3, H-1B, H-1B1, L-1 or O-1. They may apply for initial employment authorization under exigent circumstances or for renewal of such authorization.
• Category (c)(36): This category applies to spouses and dependent children of a primary beneficiary who has been granted employment authorization under category (c)(35).

Both categories allow applicants to obtain an employment authorization document for a limited period of up to one year, provided that compelling circumstances are determined to justify its issuance.

Requirements for obtaining a Hardship Employment Authorization Document (HEA)

To file an application for Employment Authorization in Hardship Circumstances you must follow these steps:

Please note that while the process is the same for both categories of the Employment Authorization for Compelling Circumstances document, the supporting documentation required does vary.

Documentation required to apply for an Employment Authorization Document for Hardship Circumstances

As mentioned above, although the process for obtaining the Hardship Employment Authorization Document is the same, the supporting documentation does vary depending on the category in which you qualify. Therefore, here are two tables specifying what supporting evidence you can submit for categories (c)(35) and (c)(36).

If you are the principal applicant for the Hardship Employment Authorization Document and therefore fall into Category (c)(35), then you must submit the following supporting documentation:

Category (c)(35) for principal applicants
If you need evidence of…	You can send…
Your E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status	– A copy of your most recent Form I-797. – A copy of Form I-94 (Arrival/Departure Record) showing that you were admitted as a nonimmigrant with an E-3, H-1B, H-1B1, O-1, or L-1 status.
Your identity	– A government-issued photo ID, such as a birth certificate with a photo ID or a visa issued by a foreign consulate. – A national identity card.
That an immigrant visa is not authorized based on your priority date, preference category, country to which the visa will be charged according to the Final Action Date in effect on the day you file Form I-765.	– A copy of the notice of approval of Form I-140 filed for you. – Any other evidence showing the priority date assigned to a Form I-140 filed for you.
There are compelling circumstances that justify USCIS using its discretion to grant you self-employment authorization.	– Medical documentation proving that your dependent and/or you are facing a serious illness or disability. – Evidence that your employer has retaliated against you. – Evidence that you or any of your dependents have received any substantial damage. This could include your priority date, school or higher education enrollment, mortgage records, long-term rental agreement records, or documentation related to home country conditions, as applicable. – Evidence of a significant disruption made to the employer. – Other evidence showing that you are experiencing exigent circumstances.
That you have no prior felony convictions or two or more misdemeanor convictions.	Certified copies of all apprehension reports, court judgments, sentencing documents, and any other relevant documents.

Children and/or spouses of the principal applicant for the Compelling Circumstances Employment Authorization Document under Category (c)(36) must submit the following documentation:

Category (c)(36) for dependent children and/or spouses
If you need evidence of…	You can send…
Your nonimmigrant status at the time the principal beneficiary applies under category (c)(35).	– A copy of your current Form I-797 (Notice of Approval of Form I-129, Petition for Alien Worker) – A copy of your current Form I-797 (notice of approval of Form I-539, Application to Extend/Change Nonimmigrant Status). – A copy of your Form I-94 (Arrival/Departure Record) showing that you were admitted as a nonimmigrant.
Your identity.	A government-issued photo ID, for example: – A copy of the biometric data page of your passport. – A birth certificate with a photo ID. – A visa issued by a foreign consulate. – A national identity card with a photo.
That the principal beneficiary has an approved Form I-765 under category (c)(35).	– A copy of the Form I-765 approval notice filed by the primary beneficiary. – Other evidence showing approval of the Form I-765 filed by the primary beneficiary.
That you have not been convicted of a felony or two or more misdemeanors.	Certified copies of all arrest reports, court dispositions, sentencing documents and any other relevant documents.
Your relationship with the primary beneficiary.	– A copy of your marriage certificate (if you are applying as the spouse of the primary beneficiary who has exigent circumstances). – Copies of documents proving the legal termination of all your or your spouse’s previous marriages (if your case warrants it). – A copy of your birth certificate (if you are applying as a child of the primary beneficiary who has compelling circumstances).

Remember that it is extremely important to submit all of this documentation in a timely manner in order to obtain your Employment Authorization Document for Hardship Circumstances.

If you need help gathering this documentation or have any other difficulties with your Form I-765 (Application for Employment Authorization), at Jaskot Law we can advise you on the matter. Contact us at +1 (410) 235-6868 or via email by using [email protected].

What are the changes to the Hardship Employment Applications?

According to the USCIS press release the changes to the requirements for obtaining a Compelling Circumstances Employment Authorization Document became effective June 14 and will apply only to employment applications filed on or after that date. Thus, all previous manuals are no longer valid.

The changes to the eligibility criteria for Form I-765 (Application for Employment Authorization) are as follows:

• Have been the principal petitioner on an approved Form I-140 (Immigrant Petition for Alien Worker) in the first, second, and/or third employment-based preference category.
• The principal applicant must have valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or be in an authorized grace period at the time of filing.
• The principal applicant has not filed an application for Adjustment of Status.
• There should be no availability for the principal applicant to obtain his immigrant visa for the period in which his employer needs him.
• The applicant has provided his/her biometric data (if applicable).
• The applicant has no felony convictions or more than two misdemeanor convictions.
• Demonstrate the existence of compelling circumstances that justify the request for employment authorization.

If you are still in doubt as to whether or not you qualify for a Hardship Employment Authorization Document, we at Jaskot Law we can advise you on the matter. Contact us at +1 (410) 235-6868 or via email by using [email protected].

Sources

USCIS – Employment Authorization in Compelling Circumstances

USCIS – Guidance on Employment Authorization Documents Based on Compelling Circumstances

Frequently Asked Questions