Adjust Your Status: Unauthorized Employment in the US

4.75 minute read

"Thousands of foreign nationals travel to the United States each year to work and build a better life for themselves and their family. However, not all of them have proper work authorization. Many immigrants work without proper authorization in the US. If you have ever been one of them, then it might be difficult to apply for Adjustment of Status to permanent residence."

Written by My Visa Source Team
Published on: Sep 30, 2021

Thousands of foreign nationals travel to the United States each year to work and build a better life for themselves and their family. However, not all of them have proper work authorization. Many immigrants work without proper authorization in the US. If you have ever been one of them, then it might be difficult to apply for Adjustment of Status to permanent residence.

Unauthorized employment in the US makes you ineligible for permanent residence since it is a violation of your nonimmigrant status. However, the US government provides certain exemptions for immediate family members of US citizens.

What Is Unauthorized Employment in the US?

Based on the US Citizenship and Immigration Service (USCIS) policy manual, unauthorized employment is defined as any service or labor performed by a foreign national for an employer not authorized by the Immigration and Nationality Act (INA) or the US Citizenship and Immigration Service (USCIS) to accept such employment or who exceeds the scope or period of the foreign national’s employment authorization.

Also, do not make the mistake to assume that all unpaid employment is always lawful. Sometimes, just volunteer work may also be considered unlawful. However, some unpaid employment is considered differently by the USCIS.

There are 2 bars codified in the Immigration and Nationality Act (INA) to determine what kind of employment is lawful: INA 245(c)(2) and INA 245(c)(8)

Timing of Employment: These bars apply to any period when you were employed. However, the first bar applies to the period of unauthorized employment right before you apply for Adjustment of Status. Unauthorized employment dating back several years after you were deported and reentered the US will not be considered.

The second bar applies to any period of unauthorized employment while you were present in the US. The USCIS official will evaluate your whole history of working in the US to determine if there was any period of unauthorized employment. This also includes the period after submitting your application for Adjustment of Status and before you are granted permanent residence. If you are engaged in any type of employment before you request any authorization or have the Employment Authorization Document, then it will be considered unauthorized.

You will be authorized to work after filing your Adjustment of Status application if:

You applied for and were granted work authorization by the USCIS
You were granted work authorization by the USCIS before filing your Adjustment of Status application and the authorization will remain valid while the application is being processed
You do not need to apply for work authorization since such authorization is incident to your nonimmigrant status

What Are the Exceptions for Immediate Relatives and Other Categories?

Immediate relatives and intending immigrants from several other classes are exempt from the bars to Adjustment of Status mentioned above. Immediate relatives to US citizens include their spouses, dependent children and parents. Any other type of family member is not included in this exemption.

Therefore, an adult child of a US citizen is not protected by this exception. Also, the spouse of lawful permanent residents is not included in the exceptions.

These bars do not apply to the following immigrant categories:

Immediate relatives of US citizens

Violence Against Women Act (VAWA)- based applicants

Certain immigrant physicians and their accompanying spouse and children

Certain G-4 international organization employees, NATO-6 employees, and their accompanying family members

Special immigrant juveniles

Certain members of US armed forces and their accompanying family members

If you have previously worked in the US without proper authorization, then it is best to contact an immigration lawyer to help you analyze your specific case and take the best course of action. Unauthorized employment can lead to denial of your green card application and may even result in removal from the US.

What Are the Other Exceptions for Unauthorized Employment?

There is another exception for unauthorized employment for certain employment-based green card applicants. This exception includes several other violations in addition to unauthorized employment. This exception only applies to applicants in the following visa categories applying for adjustment of status using the Section 245(k):

Section 245(k) helps nonimmigrants from this limited group of visas to apply for Adjustment of Status if they entered the US lawfully and their period of unauthorized employment did not exceed 180 days. This period begins on the date you accepted the employment and ends when it is terminated. The accurate calculation of this period and evidence of the termination of employment is important to determine your eligibility for this exception.

How to Ensure You Have Employment Authorization After Applying for Adjustment of Status

Just filing Form I-485 does not authorize you to work in the US. You must also apply for and receive employment authorization. For this, you must file Form I-765, Application for Employment Authorization. Once this application is approved, you will receive employment authorization, making you eligible to apply for employment in the US.

Certain employment-based visa programs like the H-1B Visa and the TN Visa do not require you to separately apply for an EAD. The visa status itself provides employment authorization. However, it is most practical to apply for Adjustment of Status with an EAD because:

There is no filing fee for Form I-765 when flinging it with Form I-485 after paying the filing fee for this form

An EAD allows you to work for any employer in the US

Your employment visa has the risk of expiring before your green card application is processed

As an immediate relative applying for Adjustment of Status, you may be eligible to file Form I-485, even if you are currently or have been previously employed without authorization. Other than this and other protected categories, any noncitizen working without authorization will likely receive a denial on their Green Card application. Therefore, it is best to consult an immigration attorney before applying for Adjustment of Status.