One of the most pressing questions that prospective permanent residents here in the US often ask is, "When Can I Start Working?" Within the context of family-based adjustment of status cases--which is what this is discussion is limited to--this topic is rife with misunderstanding. Many people, to their detriment, misunderstand the difference between applying for adjustment of status and being authorized to work.
Applying for Status Does Not Automatically Allow One To Work
An application for adjustment of status is filed on Form I-485. However, if an applicant seeks to work while the adjustment of application status is pending, he or she must apply for and receive separate permission to work. In other words, just because one has applied for adjustment of status, even if one is married to a US Citizen, does not automatically confer the right to work. Fortunately, applying for adjustment is a basis upon which one can apply for work authorization or an employment authorization document, also known as an "EAD." The work permit application is filed for on Form I-765.
The important thing to understand is that unless and until the work authorization is granted, an individual is generally not permitted to work unless he or she has independent work authorization. For example, if one is maintaining H-1B status while a family-based adjustment of status application is pending, the individual may theoretically continue working, provided that the conditions of the H-1B are being maintained. (However, as with any case, this is a circumstance-specific analysis that should be discussed with an attorney.) Otherwise, an individual should refrain from working even if an adjustment application is pending unless and until he or she has received official permission in the form of a government issued work permit from USCIS. Of course, once the adjustment of status application is approved, the applicant will no longer need permission to work because authorization will automatically be incident to his/her status as a green card holder.
Consequences of Unauthorized Work
Working without official Department of Homeland Security (DHS) permission can cause raise serious issues as to eligibility for permanent residence. In some cases, it can be fatal to an application. For example, while unauthorized work may be excused within the context of an immediate relative based application, the same type of latitude does not carry over to preference-based relative based applications. Section 245(c) of the Immigration and Nationality Act, in particular, notes that subsection a (which refers to the authority of the Attorney General to adjust a person's status) shall not be applicable to an "alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H),(I), (J), or (K), who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status." INA 245(c)(8) furthermore states that adjustment of status shall not be applicable to "any alien who was employed while the alien was an unauthorized alien, as defined in section 274(h)(3), or who has otherwise violated the terms of a nonimmigrant visa." What this essentially means is that one should not take the ability to work for granted. Whether for one dollar or thousands of dollars, working without official government permission can seriously jeopardize what might otherwise be an approvable case, especially one based on a family relationship.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.