Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

How and When Can I Work?

Q: What do I need to be able to work in the U.S.?

A: Aside from U.S. citizenship, there are three basic types of authorization: Permanent Residence (a "Green Card"), a non-immigrant visa which permits employment "incident to status" and normally with a specific employer (such as an H-1B, L-1, O-1, P-1, etc.) and possession of an Employment Authorization Document ("EAD").

Any of a long list of factors can entitle someone to an EAD - but these factors are very specific. Two of the most common are having completed a degree program as an F-1 student, and having already filed the last stage of a permanent residence - an Application to Adjust Status - but having not yet received approval. These categories often impose short time limits on the validity of the EAD. Please see our Basic Immigration Overview page for information on permanent residence, individual non-immigrant visas, and some of the ways in which one would be eligible for an EAD.

Q: When am I first able to work on each type of work authorization?

A: For all three types of work authorization, a foreign national can work once they receive that status or immigration benefit.

For permanent residence, this means once the person adjusts status to permanent residence in the U.S. or enters the U.S. as a permanent resident after processing through a U.S. embassy or consulate abroad.

For a non-immigrant visa, this means once the foreign national has either entered the U.S. in the non-immigrant status or once they have changed status while here from some other non-immigrant status.

For an EAD, this as a practical matter means upon receipt of the actual EAD.

Q: When is a foreign national able to work when seeking an extension or renewal of each type of authorization?

A: For a permanent resident, expiration of the permanent resident card does not mean expiration of permanent residence itself. While the card must be renewed after ten years, expiration of the old card does not inhibit the ability to work - even if the replacement card has not yet been received or has not even been applied for (however, it will be extremely difficult to change jobs or travel internationally without a valid permanent residence card!)

One caveat - if permanent residence is conditional and so needs to have conditions removed after a shorter period than ten years, the rules are different - a Petition to Remove Conditions must have been filed on time. The Receipt Notice for this filing will normally provide evidence of the conditional status for up to a year while the case is pending, but again here the status is ongoing unless an immigration judge declares it no longer valid (even denial of the Petition to Remove Conditions by USCIS doesn’t automatically remove the conditional status).

Again, ongoing evidence of the status is needed for travel or to accept new employment – normally obtained in the form of a temporary stamp after the one-year extension contained in the Receipt Notice expires. While USCIS will generally grant these for as long as the Petition to Remove Conditions remains pending, they often will no longer due so upon a denial – even though the status legally remains in place until a judicial decision is made. This effectively deprives a Conditional Permanent Resident of the ability to demonstrate that status for purposes of international travel and employment authorization.

For a non-immigrant visa which permits employment incident to status, in most cases it is only necessary to ensure that the petition for extension is filed before the expiration of the existing period of status - the extension need not be approved for the foreign national to continue working past the expiration date of the last non-immigrant visa for up to 240 days while the extension request is processed. After 240 days, approval of the extension petition is required (but will normally have been received within this time period).

Note that a change to a different non-immigrant status is legally not viewed the same way as an extension - approval of the new status is required in order to begin work in that status. Another unique situation is where a non-immigrant changes employers: with the exception of the H-1B visa, where the filing of an amendment petition to reflect the change of employers is sufficient to allow the foreign national to start work with the new employer, the petition for the new employer normally must be approved before the foreign national can begin working for that new employer.

For the EAD, a valid EAD is needed to work at all times - even the filing of an application for a new EAD before the expiration of the old one isn’t necessarily enough to permit continued employment once the old EAD expires (though it may be in certain specific eligibility categories).

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.