The Work Visa Versus the EAD
The H-1B visa falls in the category of work visas. Since you’re coming to the US under this document and bringing your family, it’s a common misconception that they’re allowed to work under your visa’s umbrella, too. But USCIS has specific requirements that must be met before anyone can hold a job in America, including those under an H-4 visa.
If your eligible dependents want to get a job working in the US legally, they must file for an Employment Authorization Document. This is Form I-765, Application for Employment Authorization. They’ll need to attach supporting documents that show their eligibility to live and work in the US, which will include your H-1B information. In addition to the application, a fee is required. Yet, when all of this is completed correctly, and the EAD is denied, compelling circumstances could help them get approved.
Eligibility for Compelling Circumstances
Applicants who wish to file for an EAD due to compelling circumstances must meet all of the following requirements for eligibility:
● They must be the principal beneficiary of an approved Form I-140 in employment-based preference categories 1, 2, or 3;
● Their E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status of the principal applicant must be valid or in an authorized grace period;
● No adjustment of status has been filed by the principal applicant;
● The principal applicant’s priority date does not allow for an immigrant visa;
● Biometrics for the applicant and dependents are submitted (if required);
● Neither the applicant nor any dependents have been convicted of two or more misdemeanors or any felony; and
● The principal applicant demonstrates circumstances that USCIS determines are compelling enough to justify issuing the EAD.
Compelling circumstances could be one of many situations in a non-exhaustive list, such as disability, long-term serious illness, or harm to the applicant. Much of the determination depends on the evidence the applicant submits along with their request.
If approved, USCIS can decide to grant an initial EAD for up to one year, then review the circumstances on the renewal application to see if anything has changed.
You should note that the nonimmigrant status does not need to be valid for the principal applicant, spouse, or children when you file an employment authorization renewal for compelling circumstances.
As long as your EAD is valid (due to compelling circumstances), you’re considered in the US under a period of authorized stay per the Secretary of Homeland Security. Any time you waited for the EAD application’s adjudication is also retroacted to be authorized, ensuring you don’t accrue any unlawful presence time while you’re waiting for an application that was filed timely.
Your dependents may need or want to work while they’re in the United States. Waiting for green card approval is one way to do this, but that can take months and, in some cases, years. Instead, they should be able to file for an Employment Authorization Document, yet those applications are not always approved.
Whether you need help determining compelling circumstances for your family or you have other H-1B visa questions, Visa2US is here to help. Contact our legal immigration experts to see how we can assist you in obtaining or retaining your H-1B.