Who Is Authorized To Work in the United States?
Q: Who is permitted to work in the U.S.?
A: All U.S. citizens, permanent residents, those seeking asylum/refugees, and those who have evidence of valid work authorization are permitted to work in the United States. Usually, foreign nationals are eligible to work either as non-immigrant workers or in categories that require an Employment Authorization Document (EAD). An EAD is obtained by filing an application with the U.S. Citizenship & Immigration Services (USCIS), and is evidence of work authorization until its expiration date. An EAD card is not employer-specific; it may be used for any U.S. employer.
Q: Who is eligible for an EAD?
A: Common categories requiring an EAD for employment include: those seeking asylum, refugees, academic students on F-1 visas and applicants for permanent residency. Lawful permanent residents (LPRs) do not need an EAD since a “green card” is acceptable to prove identity and employment authorization. Aliens authorized for TPS (Temporary Protected Status), Deferred Action (including those covered under Deferred Action for Childhood Arrivals, or DACA), as well as spouses of L-1A and E visa holders are also eligible.
Q: Who else is authorized to work in the U.S.?
A: Non-immigrant work visas permit temporary employment for a specific U.S. employer without an EAD. Common visas include, but are not limited to:
• H-1B (for occupations requiring specialized knowledge and a bachelor’s degree or higher in a specific specialty as a minimum for that occupation);
• E (for nationals whose countries maintain a qualifying treaty with the U.S. and come to the U.S. either to carry on substantial trade, or to direct an enterprise in which the national has invested or is investing substantial capital);
• L (for employees who transfer from a foreign company to work at an affiliate, subsidiary, branch or joint venture in the U.S., either in a managerial or executive position, or in a position requiring specialized knowledge);
• TN (for Canadians or Mexicans in professional occupations listed in the North American Free Trade Agreement); and
• J (for certain exchange visitors, including au pairs, physicians and scholars).
A full list is provided in the Code of Federal Regulations (8 C.F.R. 274a.12[b]). The qualifying employee’s Form I-94 (Arrival-Departure Record) is proof of work eligibility. These nonimmigrant visa classifications are employer-specific: the employer must file a petition to USCIS, and the employee is only permitted to work for the petitioning employer.
Q: Are there numerical limits for visa classifications granted each year?
A: USCIS limits the number of new H-1B classifications granted each year to caps of 20,000 “advanced degree” and 65,000 “general category” H-1Bs. However, if the potential employee has previously obtained an H-1B, or the employer qualifies for an exemption from the H-1B numerical cap, then the new employer may file a new petition anytime. Otherwise, the employer must file a petition through the annual H-1B “lottery” on April 1, for employment to begin the following October 1. There are no numerical limits for E, L, TN, or J classifications. For immigration visa categories that are family- and employment-based, there are quotas and priority dates upon which the beneficiary must wait.
Q: Do dependents of employees have work authorization?
A: Dependents of employees in E and L visa classifications may apply for EADs, but dependents of those in H-1B, TN, J-1, and F-1 status are generally not permitted to work, though there are limited circumstances for F and J dependents. Beginning on May 26, 2015, spouses of certain H-1B visa holders (those who are either 1) the beneficiary of an approved I-140 employment-based immigrant visa petition, or 2) have extended their H-1B visa beyond the normally permitted six years under the American Competitiveness in the Twenty-First Century Act) will be able to apply for EADs.
This "Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Francis Fungsang of Margaret W. Wong & Associates Co., L.P.A.