Get Adobe Flash player


Font Size:

Greetings and Happy Holidays, everyone!  Time to celebrate with family, friends and loved ones. Time to think about what we have accomplished this past year and also to make new goals for the upcoming year. I wish you all happiness, continued health, and increasing prosperity in whatever form that means to you.

During this time of the year many of us are shopping - buying gifts for our friends and family. Others are getting together for lunch or dinner, or both. Without much thought, our spending is actively moving this country's economy in a good way. People are working, things are getting done, and the economy gets stronger with the increased cycle of spending and earning. This discussion leads me to this week's article related to business and immigration. Specifically, I will be discussing employment of foreign nationals presently living in the United States, from the perspective of the employee or the foreign national. (Note: A "foreign national" just means someone who was not born in the U.S. and is not a naturalized U.S. citizen). In a follow-up article, I will be guiding the Employer, including the legal requirement to verify all prospective employees, USCIS e-Verify system, as well as provide some helpful pointers to stay in compliance as a business owner. 

General Notes on the Work Permit

In general...

1) If you are a foreign national living in the U.S, you cannot legally work in the U.S. unless you first obtain employment authorization from USCIS or are in a classification where employment is authorized by virtue of the visa classification (Please see Note #4 below). 

2) It is only after USCIS approves your application for employment authorization that you will receive an EAD (Employment Authorization Document) or "work permit"; which can be used as evidence to show that you are authorized to work.

3) The law requires all companies to only hire those individuals who may legally work in the U.S. Employers must request from their potential employees, proof of immigration status (U.S Citizenship, Green Card, etc) or the right to work (EAD). Employers can face sanctions for violating this requirement! (NOTE: I will be discussing Employer-Employee Requirements in a future article. Please stay tuned)

4) U.S. Citizens, by birth or via the naturalization process, as well as those with green cards automatically have permission to work. These individuals do not have to obtain an EAD. This includes foreign nationals who obtained H1-B visas (specialty workers), E treaty trader or treaty investor visa, or other work-based visas, which have been sponsored by U.S. employers. For employers seeking proof of work authorization, these individuals can simply show their U.S. birth certificate, Certificate of Naturalization, Green Card (aka Lawful Permanent Residency card), or work-based visa approvals.

5) USCIS will not approve applications for those individuals who are not included in specified nonimmigrant categories. If you are not one of these individuals, do not apply.

Which Foreign Nationals Can Apply for a Work Permit?

Not every foreign national living in the U.S. is included in a category that is eligible to apply to USCIS for a work permit. The categories include things like K-1 fiance visa holders, asylees, people with a pending application for adjustment of status (a green card) spouses of various visa holders, people with Temporary Protected Status (TPS) or Deferred Enforced Departure (DED), F-1 students experiencing economic hardship or seeking optional practical training (OPT), and so on.

In other words, EADs are only available to those in the following categories:

  • Family-Based Nonimmigrant Categories (AOS, K-1/K-2/K-3/K-4, etc)
  • Employment-Based Nonimmigrants (Spouses of E-1/E-2/L-1/E-2 CNMI Investor/H-1B, etc)
  • Asylee-Asylum Applicants/Refugees and their Spouses and Children
  • Certain Nationality Categories (such as Citizens of Micronesia, the Marshall Islands or Palau), TPS, etc
    • Foreign Students (Qualifying F-1, F-1 to OPT, J-2, and M-1 students)
    • Elgible Dependents of Employees of Diplomatic Missions, International Organizations or NATO

NOTE: There is no category for tourists or undocumented aliens (i.e., those that entered the U.S. without inspection or those that have overstayed their initial visa).

Delays in Employment Authorization Applications

Just so you know, as of this article, most immigration applications, petitions, service actions have been delayed.  This is now the norm. What was approved in just a couple of months last year, is now taking longer for any action - approval or otherwise. However, if your case is beyond the normal processing time, there are things you can do. Let's say you are eligible for a work permit and you submitted a proper application to USCIS, and your case is now pending for more than 75 days. What can you do? First, you have to make sure that your case is beyond the normal processing time. Visit the USCIS processing time web page at: (or contact my office to assist you). There you will find the processing time of not only EAD applications but also other applications, petitions, etc.

The official tip by USCIS is that...

  • If USCIS issued you an RIE (Request for Initial Evidence) after you submitted your EAD application, the date for calculating the processing time will start over from the date they received your responsive evidence.
  • If USCIS issued an RAE (Request for Additional Evidence) after you submitted your EAD application, the processing will stop the day the request was issued and resume from that point on once they receive your additional evidence.
  • If you request a rescheduling of your biometrics appointment, the date for calculating the processing time will start over from the date of the request for rescheduling.

Given all this, my advice is that prior to your submission, you want to make sure that you have all the necessary forms and required evidence, documents, etc, that you need in order to avoid any delays in the processing of your application. Although you can never guarantee a delay will never occur, you can increase your chance of avoiding this by careful planning and consultation with a reputable, experienced attorney like myself.

So there you have it: An overview of working in the U.S. from the perspective of the foreign national immigrant. In upcoming articles, I will be covering more of this topic, including but not limited to extending the work permit, as well as discussing information and legal requirements of the Employer.  

And as always, if you have any general questions you would like to be answered in future articles, please email me at: This email address is being protected from spambots. You need JavaScript enabled to view it. . To schedule a consultation to review your specific case, please contact my office at: (818) 846-5639, or my direct Thai number at: (818) 505-4921.

Disclaimer: The information contained herein have been prepared for informational purposes only and are not to be considered legal advice unless otherwise specified. If you have a specific question regarding your personal case, please contact the Law Offices of Joseph Chitmongran for a full consultation. The views and opinions expressed are those of the attorney and not of Sereechai Newspaper, its staff or anyone associated with the organization.