If you are a foreign national who has worked in the United States without a work permit (EAD) or other legal authorization, it is critical to be aware of the consequences this could have on any application you might make for a green card (U.S. lawful permanent residence).
Working without authorization in the United States is a violation of one's nonimmigrant status and can result in an application being denied by U.S. Citizenship and Immigration Services (USCIS). In some situation, it can even result in the issuance of a Notice to Appear (NTA), placing you into removal (deportation) proceedings.
For some people, it is possible to file a successful application for a green card in the United States even with unauthorized employment on record.
Most notably, self-petitioners under VAWA and immediate relatives of U.S. citizens (spouses, parents, and minor children) need not worry about this section. Also, certain categories of "special immigrants" are exempt, such as G-4 international organization employees, NATO-6 employees, and their family members, and special immigrant juveniles. (See 8 U.S.C. § 1255(c))
There's also an exception in § 245(k) of the Immigration and Nationality Act (I.N.A.) (or 8 U.S.C. § 1255(k)), saying that an alien (a non-citizen) who is otherwise eligible for any of certain employment-based immigrant visas (green cards) may adjust status if entry to the United States was lawful and unauthorized employment did not exceed an aggregate period of 180 days.
If you fall within an exception, you might still be eligible for a green card without risking the possibility of removal.
Be careful in calculating your period of unauthorized employment in the United States. For purposes of Section 245(k), it begins on the day you were hired and ends on the day employment is terminated, or the day you were granted legal authorization to work. If you worked for multiple employers without authorization at different times after entering the United States, all periods of employment will be added together and count towards the 180 days.
One common mistake applicants make is omitting weekends, vacation days, and sick time from their period of unauthorized employment. Unfortunately, these days count towards the 180-day total, even though you were not actually performing work. For example, if you did not work for a total of 30 days in a 181-day period, you will not satisfy Section 245(k) because those days off will count towards the total and your period of employment will have exceeded 180 days.
Another common mistake is assuming that unpaid employment does not count as unauthorized employment. Employment is not necessarily defined by compensation. Any position that does not truly qualify as volunteer work can be viewed as employment, even if you are not compensated for it. If this is your situation, consult with an immigration attorney to determine whether or not you did engage in unauthorized employment.
When you apply for a green card in the United States, you are required to disclose all employment you have engaged in during the last five years. This includes unauthorized employment. Failure to disclose information on your application is considered a willful misrepresentation and can result in a finding of inadmissibility (ineligibility for a green card or other U.S. entry). (For more on inadmissibility, see Who Can't Get Into The United States?)
All unauthorized employment will count towards your green card application. If it has been more than five years since you entered the United States and engaged in unlawful employment, this will still be held against you.
Due to the complexities and severe consequences involved in applying for a green card with unauthorized employment on one's record, it is highly recommended that you contact an immigration attorney before applying. An immigration attorney will assist you in making a determination of your eligibility under Section 245(k) and can advise you of your legal options if you do not qualify for this exception.