Unauthorized Employment While Your Green Card Is Pending

Even when you're about to get your green card, you must obtain a work permit before accepting employment.

Is your current employment in the U.S. authorized?  If you have filed Form I-485 for adjustment of status to become a permanent resident (get a green card) but have not yet received a work permit card, or if the priority date for processing your green card application is not yet current, you are not automatically authorized to work in the United States. In order to work legally until your green card is issued, you must obtain an Employment Authorization Document (EAD), commonly called a work permit.

How do I get employment authorization?

Employment authorized is obtained by filing Form I-765, Application for Employment Authorization, with the Department of Homeland Security (DHS), United States Citizenship and Immigration Services (USCIS). Typically the form is filed simultaneously with an I-485 application for adjustment of status. However, if you did not include a Form I-765 with your adjustment of status, you may still do so. (But unfortunately, you'll need to pay a separate fee at this time.)

What is the fee for filing an I-765?

If you file Form I-765 with your I-485 application for adjustment of status, there is no filing fee. If you file at a later time, the current fee, as of early 2017, is $410. However, the following applicants are exempt from the filing fee regardless of when the application is filed:

  • Refugees, asylees, or paroled as a refugee
  • N-8 or N-9 Nonimmigrants
  • Citizens of Micronesia, Marshall Islands, or Palau
  • Aliens granted Withholding of Removal
  • Dependents of certain foreign government or international organization personnel
  • Applicants for asylum (Special ABC applicants must pay the fee)

But, isn’t filing Form I-765 optional?

Though you may have been informed that the I-765 is optional, it is only optional if you do not intend to work in the U.S. or if you already have another form of work authorization. If you have an adjustment of status application pending and are working, however, your employment is not authorized unless:

  • you have filed Form I-765 for a work permit, or
  • you have a nonimmigrant visa that authorizes you to work for a specific employer, for example, an H-1B visa. 

Note: Even if you are in a status that authorizes work with a particular employer, it is still a good idea to file the Form I-765. Doing so will allow you to take up employment elsewhere without interruption or additional authorization in the event you lose or quit your authorized job. The EAD is not specific to any one employer or type of work. 

Is running a home business in the U.S. considered employment? 

Yes.  Home businesses are considered employment, even if only by Internet. Likewise, if you hold a nonimmigrant visa that authorizes employment for a specific employer, engaging in self-employment is not authorized if you have not filed the I-765. You will have also violated the terms of your nonimmigrant visa, which will result in your adjustment of status application being denied.

What if I have been working without my work permit? Will my I-485 automatically be denied?

The USCIS can overlook unauthorized employment for up to 180 days. If you have worked for 181 days, the I-485 application will be denied. The immigration officer will count only the days worked since you were last admitted into the United States.  Therefore, any unauthorized employment that occurred from past entries into the U.S. will not be counted. 

Are there any exceptions to the 180-day rule?

In some cases, USCIS can overlook more than 180 days of unauthorized employment, but the exception applies only to a select few applicants who qualified for an immigrant visa based on their particular employment. Family-based petitions do not qualify. If you qualified to file Form I-485 based on your employment, an experienced immigration attorney can assist you in determining whether you qualify for the exception.

Getting Legal Help

Unauthorized employment is not taken lightly, regardless of whether or not the person intentionally broke any immigration laws.Therefore, if you have worked in the U.S. illegally, you are urged to consult with an experienced immigration attorney to assess your individual situation.

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