For some types of applicants, it is possible to file a successful application for a green card in the United States even with unauthorized employment on one's record.
If you are a foreign national who has worked in the United States without a work permit (EAD) or other legal authorization, it is critical to be aware of the consequences this could have on any application you might make for a green card (U.S. lawful permanent residence).
Working without authorization in the United States is a violation of one's nonimmigrant status and can result in an application being denied by U.S. Citizenship and Immigration Services (USCIS). In some situation, it can even result in the issuance of a Notice to Appear (NTA), placing you into removal (deportation) proceedings.
Who Can Apply for a U.S. Green Card With a Record of Unauthorized Employment?
For some people, it is possible to file a successful application for a green card in the United States even with unauthorized employment on record.
Most notably, self-petitioners under VAWA and immediate relatives of U.S. citizens (spouses, parents, and minor children) need not worry about this section. Also, certain categories of "special immigrants" are exempt, such as G-4 international organization employees, NATO-6 employees, and their family members, and special immigrant juveniles. (See 8 U.S.C. § 1255(c))
There's also an exception in § 245(k) of the Immigration and Nationality Act (I.N.A.) (or 8 U.S.C. § 1255(k)), saying that an alien (a non-citizen) who is otherwise eligible for any of certain employment-based immigrant visas (green cards) may adjust status if entry to the United States was lawful and unauthorized employment did not exceed an aggregate period of 180 days.
If you fall within an exception, you might still be eligible for a green card without risking the possibility of removal.
Calculating the Period of Unauthorized Employment for I.N.A. Section 245(k)
Be careful in calculating your period of unauthorized employment in the United States. For purposes of Section 245(k), it begins on the day you were hired and ends on the day employment is terminated, or the day you were granted legal authorization to work. If you worked for multiple employers without authorization at different times after entering the United States, all periods of employment will be added together and count towards the 180 days.
One common mistake applicants make is omitting weekends, vacation days, and sick time from their period of unauthorized employment. Unfortunately, these days count towards the 180-day total, even though you were not actually performing work. For example, if you did not work for a total of 30 days in a 181-day period, you will not satisfy Section 245(k) because those days off will count towards the total and your period of employment will have exceeded 180 days.
Another common mistake is assuming that unpaid employment does not count as unauthorized employment. Employment is not necessarily defined by compensation. Any position that does not truly qualify as volunteer work can be viewed as employment, even if you are not compensated for it. If this is your situation, consult with an immigration attorney to determine whether or not you did engage in unauthorized employment.
Disclosing All Past Employment on Your Green Card Application
When you apply for a green card in the United States, you are required to disclose all employment you have engaged in during the last five years. This includes unauthorized employment. Failure to disclose information on your application is considered a willful misrepresentation and can result in a finding of inadmissibility (ineligibility for a green card or other U.S. entry). (For more on inadmissibility, see Who Can't Get Into The United States?)
All unauthorized employment will count towards your green card application. If it has been more than five years since you entered the United States and engaged in unlawful employment, this will still be held against you.
See an Immigration Attorney
Due to the complexities and severe consequences involved in applying for a green card with unauthorized employment on one's record, it is highly recommended that you contact an immigration attorney before applying. An immigration attorney will assist you in making a determination of your eligibility under Section 245(k) and can advise you of your legal options if you do not qualify for this exception.
FAQs
(For more on inadmissibility, see Who Can't Get Into The United States?) All unauthorized employment will count towards your green card application. If it has been more than five years since you entered the United States and engaged in unlawful employment, this will still be held against you.
Does USCIS forgive unauthorized employment? ›
The working without permission would be forgiven if your marriage is valid and the I-130 is approved and the 45 is approved, then your work without permission would be forgiven.
How does USCIS know you worked illegally? ›
Typically, it finds out through your tax returns, resume, and visa support letters. This means that if you work illegally, the government can find out about it in an instant, even without filing a tax return.
Can you apply for a green card if you entered the U.S. illegally? ›
A foreigner who entered the U.S. illegally without inspection by a US border agent cannot obtain a Green Card while remaining in the US. At some point the foreigner must depart the US and return on a proper visa, such as a K1 Fiance Visa or CR Marriage Visa if hoping to get a Green Card. However, there are exceptions.
Does USCIS check employment history for green card? ›
What employment history is required for a green card application? When you apply for a green card through marriage or a family member, the U.S. government will want to know where you've worked for the past five years. If you're applying from abroad, that period generally expands to the past 10 years.
What are the consequences of unauthorized work? ›
Accumulating unlawful presence in the U.S., which can result in arrest, deportation, or barred from entering the U.S. in the future. Denial of further employment or practical training from ISSS or USCIS. Possibly denial of future USCIS application (change of status to H-1B, Permanent Resident, etc.)
What happens if you work unauthorized? ›
This includes work that is paid for in cash or "off the record." Unauthorized employment can result in the need to exit and re-enter the U.S. on a new immigration record, make you ineligible for OPT or H1B status, and/or prevent you from obtaining U.S. permanent residency in the future.
How does USCIS verify work history? ›
These documents may include federal income tax returns, Forms W-2 or 1099, pay stubs, and an employment verification letter. USCIS will pay close attention to your employment verification letter. This is the case especially if you switched jobs recently or if you combine your income with your spouse.
How do I report unauthorized employment to USCIS? ›
ICE also investigates employers who employ force, threats, or coercion (for example, threatening to have employees deported) in order to keep the unauthorized alien workers from reporting substandard wage or working conditions. Toll-free phone number: 1-866-347-2423 in the U.S. and Canada.
Does USCIS call your job? ›
USCIS does not call previous employer, if at any stage, USCIS has any questions it will send Request for evidence and seek answers.
These include crimes of "moral turpitude," multiple crimes, and specified crimes such as drug trafficking, prostitution, commercialized vice, money laundering, severe violations of religious freedoms as an official working within a foreign government, and fraud.
Who qualifies for a waiver of inadmissibility? ›
You can only seek a provisional unlawful presence waiver if you are an immediate relative (spouse, child, parent, or widow/widower) of a U.S. citizen, you are or will be inadmissible solely because of your unlawful presence in the United States, and you have an immigrant visa case pending with the Department of State ...
How long can you live in the U.S. without a green card? ›
Otherwise, with a B-1/B-2 Visitor Visa, you could stay in America for up to 6 months during a 12-month time period. An H-1B Work Visa will allow you to live and work in the USA for up to 3 years; it can be renewed for an additional 3 years; and there is an option to apply for a US Permanent Resident Green Card.
How far back does the USCIS background check go for a green card? ›
Usually this is the five years before you applied, or three years if you're applying for citizenship on the basis of marriage to a U.S. citizen. You will also need to give a statement under oath about any criminal background you have in the period of good moral character.
Who can sponsor a green card? ›
The four types of relatives you can sponsor for a green card, as a U.S. citizen, are:
- Your spouse.
- Your parents (if you're at least 21 years old)
- Your children.
- Your siblings (your brothers and sisters)
There are several ways to go about this.
- If you are looking for a new job, make it clear that you want to be sponsored at your final interview. ...
- Set up a formal discussion with your boss after several months at the job. ...
- Check your company's policy regarding permanent residency. ...
- Try to qualify for EB1.
- To report undocumented immigrants, please call the U.S. Immigration and Customs Enforcement (ICE) at 1-866-DHS-2-ICE to report suspicious activity. ...
- To report employers hiring undocumented immigrants, please call the U.S. Immigration and Customs Enforcement (ICE) at 1-866-DHS-2-ICE to report suspicious activity.
These documents may include federal income tax returns, Forms W-2 or 1099, pay stubs, and an employment verification letter. USCIS will pay close attention to your employment verification letter. This is the case especially if you switched jobs recently or if you combine your income with your spouse.
Can USCIS revoke employment based green card? ›
Despite popular belief, it's possible for a person's green card to be revoked. While revocation is rare, it can happen if you fail to meet the requirements of having a green card or get involved in certain criminal activities.
