The path to a U.S. green card is fraught with complexities, especially for those who have engaged in unauthorized employment. This unauthorized work can significantly affect the process of changing your status to that of a permanent resident. This detailed guide explores the consequences of such employment, the intricacies of Form I-485 (Application to Adjust Status), and highlights the crucial exceptions and legal remedies available to navigate these challenges successfully.
Understanding Unauthorized Employment
Unauthorized employment in the U.S. is defined by the USCIS as any work for compensation (including in-kind compensation) performed by foreign nationals who have not been expressly authorized by the Department of Homeland Security or have violated the terms of their authorized employment. This can include a wide range of activities, from formal employment to informal or freelance work, and even some types of volunteer work if they fall within the USCIS’s broad definitions of labor for compensation. Notably, the Immigration and Nationality Act (INA) contains specific prohibitions (INA 245(c)(2) and 245(c)(8)) against unauthorized employment, which can hinder the ability of individuals to adjust their status within the U.S. Engaging in such work without authorization can lead to severe penalties, including but not limited to, affecting eligibility for status adjustment, potential denial of green card applications, and in some cases, initiation of deportation proceedings.
Exceptions for Family and Special Cases
Despite the stringent regulations, the law provides certain exemptions for specific categories of individuals. Immediate relatives of U.S. citizens, certain victims under the Violence Against Women Act (VAWA), specific medical professionals, employees of international organizations, and members of the U.S. armed forces may be exempt from the prohibitions related to unauthorized employment. These exceptions are crucial lifelines that allow for the adjustment of status under circumstances that would otherwise be disqualifying. It’s important for individuals who might fall under these categories to understand their eligibility and the documentation required to prove such exemptions effectively.
The 245(k) Exception: Hope for Employment-based Applicants
For employment-based green card applicants, Section 245(k) of the INA offers a significant exception. This provision allows certain individuals who have engaged in unauthorized employment for less than 180 days in total since their last lawful admission into the U.S. to still be eligible for adjustment of status. The eligibility for this exception is contingent on meeting specific conditions and does not apply to all categories of employment-based immigration. Understanding the nuances of Section 245(k), including the types of unauthorized work that may or may not disqualify an applicant, is vital for those who seek to utilize this exception as a part of their strategy to obtain lawful permanent residency.
Filing for Adjustment of Status and Employment Authorization
Adjusting status to that of a lawful permanent resident is multifaceted. Importantly, filing Form I-485, the Application to Adjust Status, does not, in itself, authorize an applicant to work in the U.S. To legally accept employment, an individual must also file Form I-765, Application for Employment Authorization, and receive an Employment Authorization Document (EAD). The concurrent filing of these forms can offer significant advantages, including the legal right to work while the adjustment of status application is being processed. This section of the guide emphasizes the procedural aspects of applying for employment authorization and the benefits it provides during the adjustment process.
Conclusion
For immediate relatives of U.S. citizens and individuals within certain protected categories, pursuing an adjustment of status following unauthorized employment is achievable. Nevertheless, the complexities and potential risks associated with this process make consulting with an experienced immigration attorney indispensable. While the challenges may seem daunting, the U.S. legal framework offers various avenues to rectify and move beyond unauthorized employment issues. With informed legal guidance, individuals can navigate the intricacies of immigration law and work towards securing their status as lawful permanent residents of the United States.
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Citations
- I-485, Application to Register Permanent Residence or Adjust Status
- Chapter 4 – Status and Nonimmigrant Visa Violations (INA 245(c)(2) and INA 245(c)(8))
- Chapter 8 – Inapplicability of Bars to Adjustment
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You may have questions regarding obtaining a green card through marriage to a U.S. citizen. We invite you to contact our team at Richards and Jurusik for detailed guidance and assistance. We aim to provide the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.
