Adjusting Status After Unauthorized Employment in the U.S. (2024)

You may be wondering if you can get a green card if you’ve worked in the United States without permission. Perhaps you learned that you may be eligible to adjust status to permanent resident but also know that unauthorized employment in the United States is generally a bar from adjustment. This means that unauthorized employment can make many people ineligible to apply for a green card. Employment without permission from the U.S. government before filing Form I-485, Application to Adjust of Status, and after applying can have a negative impact.

Generally, unlawful employment is a violation of your nonimmigrant status and can result in a denial of your application. Fortunately, there’s an exception for certain individuals like immediate relatives of U.S. citizens.

Unauthorized Employment Explained

First, it is important to define what the U.S. governmentconsiders to be unauthorized employment. According to the USCIS policy manual,“Unauthorized employment is any service or labor performed for an employerwithin the United States by a foreign national who is not authorized by the INAor USCIS to accept employment or who exceeds the scope or period of the foreignnational’s employment authorization.”

Do not make the assumption that unpaid employment is alwayslawful. Generally, pure volunteer work will not trigger the bar. But someunpaid employment may be viewed differently by USCIS. If you performed any kindof work, consider speaking to an immigration attorney for analysis of yourspecific situation.

The two bars are codified in the Immigration and Nationality Act (INA) as 245(c)(2) and 245(c)(8).

Timing of Employment

Together, these bars apply to any period of time. The first barapplies to periods of unauthorized employment prior to filing the adjustmentapplication. It doesn’t matter if it was several years ago and you’ve departedand reentered the U.S. since that time. The second bar covers any time engagedin employment not authorized while physically present in the U.S. Thus, a USCISofficer may evaluate an applicant’s entire history in the United States todetermine if any unlawful employment occurred.

It also includes the period after filing an adjustment ofstatus application and before the permanent resident status is granted. If theapplicant does not request employment authorization and/or has not yet beengranted an Employment Authorization Document, the employment is potentiallyunauthorized to work.

For purposes of these bars, an applicant is authorized towork while a properly filed adjustment application is pending if:

• The applicant applied for and USCIS authorized employment;
• USCIS granted the applicant employment authorization prior to filing an adjustment application and the authorization does not expire while the adjustment application is pending; or
• The applicant did not need to apply for work authorization, because such authorization is incident to the applicant’s nonimmigrant status.

Exceptions for Immediate Relatives and Other Categories

These bars to adjustment (INA 245(c)(2) and INA 245(c)(8)) do not apply to the immediate relatives of U.S. citizens and intending immigrants from several other classes. Immediate relatives include the spouse, parents and unmarried children (under age 21) of U.S. citizens. Any other category of family-based immigrant is not protected by this exception. For example, the adult son or daughter of a U.S. would not be covered by this exception. Likewise, the spouse of a permanent resident would not be included.

The bars for unauthorized employment do not apply to thefollowing categories:

• Immediate relatives of U.S. citizens;
• Violence Against Women Act (VAWA)-based applicants;
• Certain physicians and their accompanying spouse and children;
• Certain G-4 international organization employees, NATO-6 employees, and their family members;
• Special immigrant juveniles; or
• Certain members of the U.S. armed forces and their accompanying spouse and children.

If you have unlawfully worked in the U.S. and intend toapply for permanent residence, speak to animmigration attorney that can analyze your specific situation. Workingwithout legal authorization in the U.S. can result in a denial of your greencard application. In some cases, it can even result in removal (deportation)proceedings.

RECOMMENDED: Adjustment of Status Denial Due to Changes in Circ*mstances

Section 245(k) Exception for Unauthorized Employment

There is a separate exception for certain employment-basedgreen card applicants with a history of unauthorized employment. In fact, thisexception covers various violations (not just employment). However, onlyapplicants in certain categories (EB-1, EB-2, EB-3, and religious workers) mayqualify to adjust status using Section 245(k).

Section 245(k) facilitates adjustment of status for thislimited group of nonimmigrants if entry to the United States was lawful andunauthorized employment did not exceed an aggregate period of 180 days.Generally, the clock begins on the day you accepted employment and ends oncethe employment is terminated. An accurate calculation of calendar days inviolation, evidence of employment termination, and other factors are extremelyimportant to document eligibility.

Section 245(k) is a special tool to correct some violationsafter entry into the United States. But we highly recommend the assistance ofan immigration attorney to guide you through this process and help ensure youremain eligible for the exception.

Adjustment of Status and Employment Authorization

Remember, successfully filing Form I-485 does not provideemployment authorization. The adjustment of status applicant must also applyfor and be granted employment authorization. Generally, the applicant must fileForm I-765, Application for Employment Authorization, and receive an EmploymentAuthorization Document before accepting employment.

Certain employment-based nonimmigrants such as H-1B or TNmay not require the EAD. Their visa status provides employment authorization.But applying for the EAD concurrently with Form I-485 is generally verypractical because:

• There is no Form I-765 filing fee when filed concurrently with Form I-485 and the I-485 fee has been paid;
• An EAD allows the AOS applicant to work for virtually any employer; and
• The employment visa may expire while waiting fora green card.

An adjustment applicant applying as an immediate relative may be eligible to file Form I-485 even if the applicant is now employed or has ever been employed in the United States without authorization. Outside of this exception and the other protected categories, applicants with unauthorized employment will likely receive a denial and should strongly consider contacting an immigration attorney before applying. An immigration attorney can analyze your specific situation and can advise you of your options if you do not qualify for the exceptions.

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