Demystifying Work Permits

The U.S. government does not have a simple “work permit” procedure to allow foreign nationals employment. The process of obtaining employment authorization is a complex undertaking, even for the practiced. Now that the civil and criminal penalty provisions of the Immigration Reform and Control Act of 1986 (IRCA) are being more and more strictly enforced, foreign born workers, employers, and recruiters must be more diligent in obtaining, maintaining and evidencing valid employment authorization.

Not all of the classes follow the same procedure to get authorization and not all get the same documents to establish authorization. The following are common forms of employment authorization documents (EADs).

Form I-94, Arrival/Departure Record is issued at a port of entry or in the case of change/extension of status. It is attached to the bottom of the I-797 Approval Notice. Nonimmigrants working under an employment authorized nonimmigrant status will have an I-94 card.

Form I-551 Alien Registration Card (green card) is evidence of work authorization. In some cases a temporary I-551 stamp is placed in the passport to evidence legal work status. The I-551 stamp is valid for one year and may be renewed if the Green Card has not been received.

Over the years the “green card” has been issued in a number of styles and colors and with varying lengths of validity. NOTE that only the most recent version, the I-551, is acceptable for employment eligibility verification pursuant to notice by USCIS in November 2007.

Employment Authorization Document (EAD). In most cases, for the categories that require an EAD, the actual EAD card must be in the alien’s possession before accepting employment. Receipt notices, approval notices or printouts from USCIS are not evidence of work authorization.

EADs contain a picture of the alien and basic information such as the name, birth date, country of birth, and the USCIS “A” number (alien registration number). It may be used for identification as well as employment eligibility to employers when completing the Form I-9.

Employment Authorized Incident to Status. Lawful Permanent Residents (LPR) or green card holders and special agricultural workers (SAW) and Temporary Residents who entered prior to Jan. 1, 1982 on Form I-688 Temporary Resident Card are authorized to work based on status. Family Unity Program applicants on temporary and §244A TPS classes also must obtain an EAD to work. Asylee or refugee status asthmatically includes work authorization. Generally, aliens who are applying for Adjustment of Status to LPR can get an EAD for one year, which can be renewed.

Other classes of aliens who are employment authorized during the period of the validity of their status, BUT who MUST have an EAD: 1) a fiancé(e) or the child of that alien K-1 and K-2; 2)alien admitted as parent or dependent child of an LPR; and citizens of Micronesia and the Marshall Islands.

Aliens granted withholding of deportation or removal as well as extended voluntary departure are eligible for work authorization. Both must apply for an EAD.

The Legal Immigrant and Family Equity (LIFE) Act created multiple new employment status: V status, K-3 and K-4. Spouses and children qualify for V status if the y are the beneficiaries of petitions filed before December 21,2000, with other conditions. Expanded K status under the LIFE Act allows the spouses (K-3) and children (K-4) to enter the US while the I-130 is pending approval. K-3 or K-4s seeking to renew work authorization must prove that a Form I-130 has been filed on their behalf or that an application for adjustment of status has been filed with USCIS or an application for an immigrant visa with Dept. Of State (DOS)

E and L spouses may apply for employment authorization by filing an I-761. E and L spouses will be authorized employment status for the period of admission of the primary spouse, not to exceed two years.

Some aliens are authorized for employment with a specific employer based on their status. These aliens are not required to obtain and EAD as they are generally beneficiaries of nonimmigrant petitions submitted by the employer or in the treaty trader/investor categories (H-1B, H-2A, H-2B, H-3, I, J-1, L-1A, l-1B, 0-1&2, P-1&2, Q-1 and R). Customs and Border Patrol generally endorse the Form I-94 indicating the classification under which the alien was admitted and the period of authorized stay, which determines the period of authorized employment. Extensions or changes are attached to the bottom of a USCIS Form I-797A Notice of Action (approval notice).

Students or Exchange visitors have specific rules which depend on the SEVIS (Student Exchange Visitor Information System) and are still being updated. Employment is generally limited for students; Exchange Visitors are limited to the purpose for the visit and particular attention should be paid to the rules entitling employment outside the primary activities of the particular exchange program.

J-2 accompanying spouse or minor children may seek employment authorization only to support the family recreational, cultural and travel activities travel. They cannot get work authorization for work which supports the J-1 principal. The maximum J-2 authorization is 4 year.

The Tran Law Group lawyers encourage you to schedule a free consultation online or call at (714) 702-1437 to discuss your case with an experienced Santa Ana, California lawyer today.