Can I Get a Work Permit While Waiting for a Green Card?
By Amar Ali, Immigration Solicitor
If you are currently waiting on a decision from the US Citizenship and Immigration Service (USCIS) in relation to your Green Card application, the chances are that you will want to start work to support yourself and your family. As with all aspects of immigration, however, it is always important to ensure that before you change your circumstances, you check whether this is allowed under your current residence status. All too often, we see cases involving migrants who have started studying or working when not entitled to do so. The risk is that migrants may have their immigration status removed and be forced to leave the country, even if they are not aware they were in breach of the law. In this article, we will explain whether migrants in the United States can work legally while waiting for a decision on their Green Card application.
No Automatic Right To Work
It is important to understand that even though you are legally in the US and have submitted a Green Card application to which you are fully eligible, this does not mean you have the automatic right to work or be entitled to a work visa. The immigration rules state that migrants must apply for a work visa if they:
- Have a pending Form I-485, Application to Register Permanent Residence or Adjust Status.
- Have a pending Form I-589, Application for Asylum and for Withholding of Removal.
- Have a nonimmigrant status that allows them to be in the United States but does provide permission to work without first seeking permission from USCIS (such as an F-1 or M-1 student).
If you have already received your Green Card, then you will not need to apply for permission to work as you are classed as a lawful permanent resident with the full right to work.
Some migrants will have automatic permission to work (referred to as ‘incident to status’); for example, asylees and refugees will gain permission to work as soon as they gain legal status in the United States.
While most migrants waiting for a Green Card decision will be eligible for a work permit, those with criminal convictions or who have been arrested or charged may not be able to secure permission to work.
To gain permission to work, you need to apply for a work permit (referred to as an Employment Authorisation Document (EAD)), by completing and filing Form I-765 (Application for Employment Authorisation).
Applying For An EAD
You can choose to apply for your work permit (Form I-765) at the same time as applying for a Green Card. Doing so means that you only pay a single fee to file both applications. If you did not apply for an EAD when submitting your I-485, then you can do so afterwards while waiting for a decision on your application. If you apply later, then it is recommended that you include your I-485 filing receipt (the Form I-797C Notice) in your EAD application which will mean there is no filing fee payable.
As part of your EAD (form I-765) application, you will need to complete the following details:
- Your reason for applying
- Your personal details (name/s, addresses, alien registration number, marital status, social security number, parent’s names, countries of citizenship or nationality, and place of birth)
- Information about your last arrival in the US
- Under which category you are applying
- Personal declaration
- Interpreter details, and;
- Preparer’s details
- Additional information
If you are unsure of any of the answers to these questions, it is recommended that you take the time to find the correct information. By providing incorrect answers, even if unintentionally, you do risk your application being delayed or refused. If required, an immigration lawyer will be able to review your application to ensure it is correct prior to submission.
The address for your application will depend on your application category. As a migrant with a pending adjustment of status application (i.e. your green card application) – referred to as Eligibility Category 8 CFR 274a.12, there are four different addresses; the one you use will be based on your exact circumstances. Remember, before posting your application, ensure it is signed in all places where necessary, as USCIS will automatically reject any unsigned forms.
Once you have completed and submitted your I-765 form, you will receive a filing notice confirming receipt by USCIS. They will also advise if you need to have your biometric information taken, whether you need to attend an interview, and ultimately, a decision on your application. Updates on your application will also be available on your USCIS online account.
What If I Have Been Working Without Permission While Waiting For My Green Card?
There may be leniency exercised by USCIS if you have been working without permission (i.e. you have not completed your I-765 form and received a work permit), however, it depends on how long you have been working. Typically, you can expect your I-485 application to be approved if you have worked for no more than 180 days since you were last granted permission to enter the US (time spent working before this will not count). If you have worked for longer, there is a risk that your Green Card application may be refused. If you are in this position, it is essential to engage the services of immigration solicitors who can advise you.
Final Words
If you are applying for a Green Card and need to work, the good news is that by filing an I-765 form, you should be able to secure a work visa, however, it can take around six months to receive a decision. And unfortunately, you will have to wait until you have permission before you start work. By applying as soon as possible and by providing all of the information and details requested in the I-765 application, you will minimise the time to receiving your work visa.
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