Unauthorized Employment While Your Green Card Is Pending

While waiting to adjust status to permanent resident in the U.S., you must obtain an employment authorization document if you plan to work.

As a foreign-born person in the United States, you must be careful not to take a job unless you are actually authorized for U.S. employment. Specifically, if you are a non-citizen in the early stages of applying for adjustment of status to become a permanent resident (get a green card), you should know that you are not automatically authorized to work in the United States. In other words, if you have filed USCIS Form I-485 but have not yet received a work permit card, you must take an additional step. In order to work legally until your U.S. residence is approved, you must obtain an Employment Authorization Document (EAD), commonly called a work permit.

If you are at an even earlier stage in the process, and the priority date for processing your green card application is not yet current, you do not yet have the right to apply for work authorization.

How Do I Get U.S. Employment Authorization?

For adjustment of status applicants, employment authorization is normally 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, which is convenient because one fee includes both forms.

However, if you did not include a Form I-765 with your adjustment of status application, you may still send one in to USCIS. To avoid having to pay a separate fee, include a copy of the Form I-797C Notice for Form I-485 that USCIS sent you as a filing receipt.

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. (The normal fee for the I-765, as of late 2021, is $410.)

Isn't Filing Form I-765 Optional?

Though you might 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 (an "EAD"), 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 in the U.S. with a particular employer while you wait to adjust status, 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?

Although the law is fuzzy on this point, home businesses are typically considered employment by U.S. immigration authorities, even if your work is done only online.

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 and been approved. You will have also violated the terms of your nonimmigrant visa, which can 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 or more, the I-485 application will likely be denied (but speak to an immigration attorney to see whether any exceptions apply in your case). 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.

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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