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