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Employment While Immigrant Application Pending

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Sep 30, 2019)

Can I work while an immigrant classification petition is pending on my behalf?

The fact that you are the beneficiary of an immigrant classification petition does not authorize you to accept employment. While that petition is pending, you may work only if you already have a nonimmigrant status which authorizes you to accept employment.

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In many instances, you may file an Application for Adjustment of Status together with the classification petition ("concurrent filing"). In those situations (see below), you may be able to file an Application for Employment Authorization.

Can I work while my Application for Adjustment of Status is pending?

You cannot accept employment unless you have an Employment Authorization Document (EAD) or already have a nonimmigrant status which authorizes you to accept employment.  You can apply for EAD, on Form I-765, together with your application for adjustment of status, if you are qualified to file for adjustment of status.

You may file an Application for Employment Authorization (Form I-765) together with your Application for Adjustment of Status. There is no additional application fee for filing Form I-765 with your Application for Adjustment of Status or while your adjustment application is pending.

If you are not yet eligible to file for adjustment of status (e.g., no visa is yet available to you), then you may apply for employment authorization, if:

  • You have an approved Form I-140,
  • You are in the country on a valid E-3, H-1B, H-1B1, O-1, or L-1 visa, and
  • You are facing compelling circumstances.

What are the penalties for accepting employment without authorization?

Aliens are generally barred from adjustment of status inside the United States, if they have accepted unauthorized employment. The following aliens, however, are exempt from this bar:

  • Immediate relatives
  • 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
  • Certain members of the U.S. armed forces and their accompanying spouse and children

There is also a limited exception for aliens who are the beneficiaries of employment-based petitions. See Adjustment of Status.

The fact that you may receive forgiveness for an unlawful conduct should not encourage you to engage in such conduct. Prevalent ignorance of the law may prompt the USCIS officers to decline to exercise their discretion in your favor when you really need it. In addition, if your circumstances change and you end up needing to apply for immigration benefits under a different classification, you may not favorable consideration. .

Related Topics:

Consular Processing

Adjustment of Status

Priority Date & Visa Availability

Travel While Application Pending

 

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