With certain exceptions, an applicant is barred from adjusting statusif:
He or she continues in or accepts unauthorized employment prior to filingan application for adjustment of status;[1] or
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, theINA 245(c)(2)andINA 245(c)(8)bars to adjustment do not apply to:[4]
Immediate relatives;
Violence Against Women Act (VAWA)-based applicants;
Certainphysiciansand their accompanying spouse and children;[5]
Certain G-4 international organization employees,NATO-6 employees, and theirfamily members;[6]
Specialimmigrantjuveniles;[7] or
Certain members of the U.S.armed forcesand their accompanying spouse and children.[8]
Employment-based applicants also may be eligible for exemption from this bar underINA245(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 performedfor an employer within the United Statesby a noncitizenwhois not authorizedby the INA orUSCISto accept employment or whoexceeds thescope or period of the noncitizen’s employmentauthorization.[11]
Date | Event |
|---|---|
January 2, 2005 | A noncitizenis admitted as anH-1B nonimmigrantto work foran employer. |
April 1, 2006 | The noncitizentakes a position withanother employer who fails to file a nonimmigrant visa petition forthe noncitizen prior to employment. |
August 15, 2007 | The new employerfiles an employment-based immigrant visa petition forthe noncitizenthat is approved.The noncitizenconcurrently filesan adjustment application. |
September 15, 2007 | USCIS approves anEmployment Authorization Document (EAD)forthe noncitizenbased 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. Theapplicant 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 onINA 245(c)(2)andINA 245(c)(8)for the unauthorized employment violations.[12]
2.Authorized Employment
For purposes ofthese bars, anapplicantis authorized to work whileaproperly filed adjustment application is pending if:
The applicant applied for andUSCIS authorizedemployment;[13]
USCIS granted theapplicant employment authorization prior tofiling an adjustment application and theauthorizationdoes not expirewhilethe 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.[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 andconditionsof the nonimmigrant status,theapplicant does not need toobtainan EAD tocontinueauthorizedemploymentduring the time specified whiletheadjustment application is pending.These applicants, however, may apply for an EAD if they prefer.
Inallother cases,anadjustment applicant mustfile an Application for Employment Authorization (Form I-765) concurrently with or subsequent to filing an Application to RegisterPermanent Residence or Adjust Status (Form I-485)andawaitUSCISissuance oftheEAD beforeengagingin employment.[16] This includesrefraining from employment afterthe applicant’s work-authorized status orpreviouslyapproved EAD expiresuntil 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
TheINA 245(c)(2)bar applies to unauthorized employment prior to filing the adjustment application.The departure and subsequent reentry of an applicant whowas employed without authorization inthe United Statesprior to filing an adjustment applicationdoes noterase the thisbar.Otherwise, an applicant whoengaged in unauthorized employmentcould simply depart the United States, reenter immediately, and become eligible to file for adjustment of status.[18]
TheINA 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.USCISplaces no time restrictions on whenunauthorized employment must have occurred, because the INAdoes not state that theunauthorized employmentmust have occurred duringany particular period of time.[19]
Anofficer, therefore,should reviewanapplicant’s entire employment history in the United Statesto determine whetherthe applicant has engaged in unauthorized employment.In addition to an applicant’s most recent entry and admission,anofficer should examine all of the applicant’s previous entries and admissions into the United States. Anofficer should disregard how much time has passed since each entry and whether theapplicantsubsequently left the United Statesand 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 underINA 245(c)(2)orINA 245(c)(8):
Arrival/Departure Record (Form I-94);
Notice of Action (Form I-797);
Pay stubs;
W-2 statements;
Income tax records;
Employment contracts; and
Any additional documents, evidence,or testimonyregarding the nature and scope of the applicant’s employment history in the United States.
Footnotes
[^ 1]SeeINA 245(c)(2).
[^ 2]SeeINA 245(c)(8).
[^ 3]See Section B, Periods of Time to Consider and Effect of Departure [7 USCIS-PMB.6(B)].
[^ 4]BothINA 245(c)(2)andINA245(c)(8)bar applicants from adjusting if they have engaged in unauthorized employment. However, the language ofINA 245(c)(2)includes a specific exclusion for immediate relatives and certain special immigrants that is missing from the language ofINA 245(c)(8). Applying traditional concepts of statutory construction, USCIS interprets the exemptions inINA 245(c)(2)to apply toINA 245(c)(8)as well. See62 FR 39417 (PDF), 39422(Jul.23, 1997). See8CFR 245.1(b)(10).
[^ 5]SeeINA 101(a)(27)(H).
[^ 6]SeeINA 101(a)(27)(I). This group is exempt fromINA 245(c)(2),INA 245(c)(7), andINA 245(c)(8).
[^ 7]SeeINA 101(a)(27)(J).
[^ 8]SeeINA 101(a)(27)(K).
[^ 9]See Chapter 8,Inapplicability ofBars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PMB.8(E)].
[^ 10]SeeINA 274A,8 CFR 274a, and62 FR 39417 (PDF)(Jul.23, 1997).
[^ 11]See8 CFR274a.12(a)-(c)for examples of authorized employment.
[^ 12]While there is an exemption underINA 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]See8 CFR 274a.12, which indicates classes of noncitizens that must apply for work authorization.
[^ 14]See62 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]See8 CFR 274a.12(c)(9).
[^ 17]See8 CFR274a.14(b).
[^ 18]See52 FR 6320, 6320-21 (PDF)(Mar.3, 1987). See Chapter 8,Inapplicability ofBars to Adjustment [7USCIS-PM B.8].
[^ 19]See8 CFR 245.1(b)(10). See62 FR 39417, 39421 (PDF)(Jul.23, 1997).
Version History
No historical versions available.
