Chapter 6 - Unauthorized Employment (INA 245(c)(2) and INA 245(c)(8))
With certain exceptions, an applicant is barred from adjusting status if:
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He or she continues in or accepts unauthorized employment prior to filing an application for adjustment of status;[1] or
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He or she has ever engaged in unauthorized employment, whether before or after filing an adjustment application.[2]
These bars apply not only to unauthorized employment since an applicant’s most recent entry but also to unauthorized employment during any previous periods of stay in the United States.[3]
As previously discussed, the INA 245(c)(2) and INA 245(c)(8) bars to adjustment do not apply to:[4]
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Immediate relatives;
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Violence Against Women Act (VAWA)-based applicants;
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Certain physicians and their accompanying spouse and children;[5]
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Certain G-4 international organization employees, NATO-6 employees, and their family members;[6]
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Special immigrant juveniles;[7] or
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Certain members of the U.S. armed forces and their accompanying spouse and children.[8]
Employment-based applicants also may be eligible for exemption from this bar under INA 245(k).[9]
An applicant employed while his or her adjustment application is pending final adjudication must maintain USCIS employment authorization and comply with the terms and conditions of that authorization.[10] The filing of an adjustment application itself does not authorize employment.
A. Definitions
1. Unauthorized Employment
Unauthorized employment is any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization.[11]
|
Date |
Event |
|---|---|
|
January 2, 2005 |
A noncitizen is admitted as an H-1B nonimmigrant to work for an employer. |
|
April 1, 2006 |
The noncitizen takes a position with another employer who fails to file a nonimmigrant visa petition for the noncitizen prior to employment. |
|
August 15, 2007 |
The new employer files an employment-based immigrant visa petition for the noncitizen that is approved. The noncitizen concurrently files an adjustment application. |
|
September 15, 2007 |
USCIS approves an Employment Authorization Document (EAD) for the noncitizen based on the pending adjustment application. |
|
January 1, 2008 |
The H-1B nonimmigrant’s authorized stay expires, as indicated on the Arrival/Departure Record (Form I-94). |
In this example, the applicant left his authorized H-1B employer in April 2006. The applicant was not granted any H-1B status, EAD, or other USCIS employment authorization allowing him to work elsewhere until September 15, 2007. Therefore, the applicant’s employment with the second employer was unauthorized from April 1, 2006, until September 15, 2007. The applicant is barred from adjusting status based on INA 245(c)(2) and INA 245(c)(8) for the unauthorized employment violations.[12]
2. Authorized Employment
For purposes of these bars, an applicant is authorized to work while a properly filed adjustment application is pending if:
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The applicant applied for and USCIS authorized employment;[13]
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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
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The applicant did not need to apply for work authorization, because such authorization is incident to the applicant’s nonimmigrant status.[14]
Certain categories of nonimmigrants are authorized to engage in employment as an incident of status, subject to any restrictions stated in the regulations.[15] As long as the adjustment applicant complies with applicable terms and conditions of the nonimmigrant status, the applicant does not need to obtain an EAD to continue authorized employment during the time specified while the adjustment application is pending. These applicants, however, may apply for an EAD if they prefer.
In all other cases, an adjustment applicant must file an Application for Employment Authorization (Form I-765) concurrently with or subsequent to filing an Application to Register Permanent Residence or Adjust Status (Form I-485) and await USCIS issuance of the EAD before engaging in employment.[16] This includes refraining from employment after the applicant’s work-authorized status or previously approved EAD expires until USCIS issues the new EAD.
Finally, in all cases, if USCIS denies the adjustment application, any EAD granted based on that adjustment application may be subject to termination.[17]
B. Periods of Time to Consider and Effect of Departure
The INA 245(c)(2) bar applies to unauthorized employment prior to filing the adjustment application. The departure and subsequent reentry of an applicant who was employed without authorization in the United States prior to filing an adjustment application does not erase the this bar. Otherwise, an applicant who engaged in unauthorized employment could simply depart the United States, reenter immediately, and become eligible to file for adjustment of status.[18]
The INA 245(c)(8) bar applies to any time engaged in unauthorized employment while physically present in the United States regardless of whether it occurred before or after submission of the adjustment application. USCIS places no time restrictions on when unauthorized employment must have occurred, because the INA does not state that the unauthorized employment must have occurred during any particular period of time.[19]
An officer, therefore, should review an applicant’s entire employment history in the United States to determine whether the applicant has engaged in unauthorized employment. In addition to an applicant’s most recent entry and admission, an officer should examine all of the applicant’s previous entries and admissions into the United States. An officer should disregard how much time has passed since each entry and whether the applicant subsequently left the United States and returned lawfully.
C. Evidence to Consider
An officer may request, review, and consider the following documentation to determine whether the applicant may be barred from adjustment based on unauthorized employment under INA 245(c)(2) or INA 245(c)(8):
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Arrival/Departure Record (Form I-94);
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Notice of Action (Form I-797);
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Pay stubs;
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W-2 statements;
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Income tax records;
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Employment contracts; and
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Any additional documents, evidence, or testimony regarding the nature and scope of the applicant’s employment history in the United States.
Footnotes
[^ 1] See INA 245(c)(2).
[^ 2] See INA 245(c)(8).
[^ 3] See Section B, Periods of Time to Consider and Effect of Departure [7 USCIS-PM B.6(B)].
[^ 4] Both INA 245(c)(2) and INA 245(c)(8) bar applicants from adjusting if they have engaged in unauthorized employment. However, the language of INA 245(c)(2) includes a specific exclusion for immediate relatives and certain special immigrants that is missing from the language of INA 245(c)(8). Applying traditional concepts of statutory construction, USCIS interprets the exemptions in INA 245(c)(2) to apply to INA 245(c)(8) as well. See 62 FR 39417 (PDF), 39422 (Jul. 23, 1997). See 8 CFR 245.1(b)(10).
[^ 5] See INA 101(a)(27)(H).
[^ 6] See INA 101(a)(27)(I). This group is exempt from INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8).
[^ 7] See INA 101(a)(27)(J).
[^ 8] See INA 101(a)(27)(K).
[^ 9] See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].
[^ 10] See INA 274A, 8 CFR 274a, and 62 FR 39417 (PDF) (Jul. 23, 1997).
[^ 11] See 8 CFR 274a.12(a)-(c) for examples of authorized employment.
[^ 12] While there is an exemption under INA 245(k) for employment-based applicants who have worked without authorization, the applicant is not eligible to claim that exemption because “the applicant’s unauthorized employment exceeded the 180-day limitation. INA 245(k) only applies to certain applicants whose immigration violations, if any, do not exceed the 180-day limit.
[^ 13] See 8 CFR 274a.12, which indicates classes of noncitizens that must apply for work authorization.
[^ 14] See 62 FR 39417, 39421 (PDF) (Jul. 23, 1997).
[^ 15] Examples of nonimmigrants authorized to work incident to status include E-1, E-2, E-3, H-1B, H-3, L-1, O-1, P-1, and R-1, among others.
[^ 16] See 8 CFR 274a.12(c)(9).
[^ 17] See 8 CFR 274a.14(b).
[^ 18] See 52 FR 6320, 6320-21 (PDF) (Mar. 3, 1987). See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].
[^ 19] See 8 CFR 245.1(b)(10). See 62 FR 39417, 39421 (PDF) (Jul. 23, 1997).