Immigration Law Wiki
EMPLOYMENT WITHOUT AUTHORIZATION
WHAT ARE THE CONSEQUENCES OF UNAUTHORIZED EMPLOYMENT?
If I worked in the US without having employment authorization will there be any consequences? There may be extremely serious consequences or it may not affect your immigration case at all. It depends on what kind of case you have. If you are applying for residency based on an immediate relative petition–like marriage to a US citizen–then you will be exempt from the rule that bars a person from obtaining permanent residency if they ever worked in the US without authorization. If you are doing a VAWA case or a SIJS case then it won’t matter for you either. If you are trying to obtain residency through an employer petition or a family preference category petition–like a petition from a parent for an adult son/daughter or a petition for a sibling–then unauthorized employment may prevent you from going forward with your case if it is alleged.
Unauthorized employment is something that is taken extremely seriously and can have extreme consequences so it is something you should be very careful about. Just because Elon Must may have done it doesn’t mean you can (unless you have a few million to donate to the President and a couple members of Congress).
Adjustment of Status
In the adjustment of status context, having at any time engaged in unauthorized employment may trigger the adjustment of status bars found in sections 245(c)(2) and (8) of the Immigration and Nationality Act (INA). See the United States Citizenship and Immigration Services (USCIS) Policy Manual addressing this issue [see 7 USCIS-PM B.6] and the relevant statutes, regulations, and administrative guidance to provide an overview of the effect of unauthorized employment on a nonimmigrant’s ability to adjust status under section 245(a).
Section 245(c) contains eight separate bars to adjustment of status. Two of those eight address unlawful employment. Those sections are INA 245(c)(2) and INA 245(c)(8), which I have highlighted in red below:
(c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa
– INA 245(c) / Title 8-ALIENS AND NATIONALITY CHAPTER 12-IMMIGRATION AND NATIONALITY SUBCHAPTER II (Link to Full)
Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title, (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa.
The phrase “no fault of his or her own or for technical reasons” is limited in 8 C.F.R. 245.1(d)(2) to:
i. The inaction of an individual or organization who is authorized by immigration regulations and over whose actions the alien has no control. In order for this exemption to apply, the individual or organization must acknowledge its inaction. The regulation cites as an example of an “individual or organization” a designated school official (DSO) for certain nonimmigrant students.
ii. A technical violation resulting from inaction by USCIS. The regulation offers as an example a situation in which an applicant demonstrates that he or she filed a timely request to maintain status and USCIS fails to act for technical reasons.
iii. A technical violation resulting from the physical inability of an applicant to request an extension of stay. The regulation offers as an example a situation where the applicant is hospitalized and accordingly unable to request an extension of stay.
iv. “A technical violation resulting from USCIS’s application of the maximum 5/6 year period of stay for certain H1 nurses only if the applicant was subsequently reinstated to H1 status in accordance with the terms of Public Law 101-656.”
ALSO NOTE
Section 245(c)(8) does not explicitly exempt immediate relatives and certain special immigrants whereas 245(c)(2) does. Nevertheless, USCIS applies the exemptions listed in 245(c)(2) to (c)(8) through 8 C.F.R. 245.1(b)(10).
Section 245(k) of the INA provides for limited waivers for employment-based adjustment of status applicants from the bars in sections 245(c)(2), (3), and (8). With regard to unauthorized employment specifically, 245(k) may waive up to 180 days of unauthorized employment accrued subsequent to the alien’s last lawful admission or parole into the United States.
CASE LAW
The Board of Immigration Appeals (BIA) held in the Matter of Adalatkhah, 17 I&N Dec. 404 (BIA 1980) [PDF version] that an alien seeking adjustment of status on the basis of an approved immediate relative petition as the spouse of a U.S. citizen may be exempt from section 245(c)(2) even if the marriage is no longer viable.
With certain exceptions, an applicant is barred from adjusting status if:
He or she continues in or accepts unauthorized employment prior to filing an application for adjustment of status; or
He or she has ever engaged in unauthorized employment, whether before or after filing an adjustment application.
The INA 245(c)(2) and INA 245(c)(8) bars to adjustment do not apply to:
- Immediate relatives;
- Violence Against Women Act (VAWA)-based applicants;
- Certain physicians and their accompanying spouse and children;
- Certain G-4 international organization employees, NATO-6 employees, and their family members;
- Special immigrant juveniles; or
- Certain members of the U.S. armed forces and their accompanying spouse and children.
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.
Employment-based applicants also may be eligible for exemption from this bar under INA 245(k).
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. The filing of an adjustment application itself does not authorize employment.
OTHER LINKS
USCIS POLICY MANUAL Volume 7 Chapter 6 – Unauthorized Employment
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim
