Change of status after illegal work: what you need to know if you worked in the US without permission

Illegal employment in the United States is generally a barrier to changing immigration status. Illegal employment can result in many people not being able to apply for a green card, reports CitizenPath.

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Employment without U.S. government authorization—either before or after filing Form I-485 (Application for Adjustment of Status)—can have negative consequences.

Generally, illegal employment is a violation of your nonimmigrant status and may result in your green card application being rejected. Fortunately, there are exceptions for certain individuals, such as immediate family members of US citizens.

Unauthorized employment

First, it is important to define what the US government considers illegal employment. According to the USCIS policy manual, "unauthorized employment is any service or work performed for an employer in the United States by a foreign national who is not authorized by the INA or USCIS to perform work in America."

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But don't make the assumption that unpaid employment is always legal. As a rule, pure volunteer work does not lead to negative consequences. But some types of unpaid work may be treated differently by USCIS. If you have done any work without permission, consider talking to an immigration attorney to review your specific situation.

Working hours

Problems can arise even if you worked illegally for several years before you applied for adjustment of status, and have since left and re-entered the United States. The USCIS officer may evaluate the applicant's entire history in the United States to determine if any illegal employment has taken place.

Also, the period after the application for adjustment of status and before the granting of permanent resident status is also illegal time for employment. If the applicant does not apply for a work permit and/or has not yet been issued a work permit document, they are prohibited from working.

An applicant is allowed to work while his application for adjustment of status is pending if:

• The applicant has previously applied for and obtained a USCIS work permit;
• USCIS granted the applicant a work permit prior to filing an adjustment application, and the permit does not expire while the adjustment application is pending; or
• The applicant did not need to apply for a work permit because such permission is linked to the applicant's non-immigrant status.

Immediate Family Exceptions for U.S. and Other Citizens

These prohibitions do not apply to immediate family members of US citizens and potential immigrants from several other categories. Immediate family includes the spouse, parents, and unmarried children (under 21) of US citizens. This exception does not apply to any other category of family immigrant. For example, this exception does not apply to the adult son or daughter of a US citizen or the spouse of a permanent resident.

Prohibitions on illegal employment do not apply to the following categories:

• Immediate relatives of US citizens;
• Applicants under the Violence Against Women Act (VAWA);
• Some physicians and accompanying spouses and children;
• Certain employees of international organizations (G-4 visa), NATO employees (NATO-6) and their families;
• Underage immigrants of special categories;
• Certain members of the United States Armed Forces and accompanying spouses and children.

If you have worked illegally in the US and are about to apply for permanent residence, speak with an immigration attorney who can analyze your specific situation. Working without official permission in the US may result in your green card application being rejected. In some cases, this may even lead to deportation proceedings.

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Change of status and work permit

Remember that filing Form I-485 (Application to Change Status) does not automatically grant employment authorization. An applicant for a status change must also apply for and obtain a work permit. Typically, this requires the applicant to file Form I-765 Application for Employment Authorization and obtain an Employment Authorization Document (EAD) prior to employment.

Some nonimmigrant employees, such as H-1B or TN visa holders, may not need an EAD. Their visa status gives them permission to work. But filing an EAD application at the same time as Form I-485 is usually very practical because:

• There is no fee to file Form I-765 if it is filed at the same time as Form I-485 and the I-485 fee has been paid;
• EAD allows the applicant to work for almost any employer;
• A work visa may expire while waiting for a green card.

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