Unauthorized Employment and Adjustment of Status

What is unauthorized employment?

USCIS defines unauthorized employment for these adjustment bars as service or labor performed in the United States by a noncitizen who is not authorized to accept employment or who exceeds the scope or period of the employment authorization.

Examples can include:

• Working before employment authorization begins;
• Continuing after authorization expires;
• Working for an employer not covered by the person's status or petition;
• Working more broadly than CPT authorization permits;
• Employment outside OPT authorization;
• Active self-employment without authorization;
• Unauthorized freelance or independent-contractor work; and
• Other compensated labor beyond the scope of immigration authorization.

INA §245(c)(2) and INA §245(c)(8)

Unauthorized employment appears in two separate adjustment bars.

USCIS interprets regulatory exemptions applicable to the unauthorized-employment bars to cover qualifying immediate relatives and several other protected categories.

Employment before and after Form I-485 filing

The timing of the work matters because the two statutory provisions are worded differently.

USCIS policy distinguishes:

• INA §245(c)(2), which addresses unauthorized employment before filing adjustment; and
• INA §245(c)(8), which can apply to unauthorized employment occurring at any time while physically present in the United States, including after Form I-485 is filed.

Immediate relatives of U.S. citizens

Qualifying immediate relatives are generally exempt from the ordinary unauthorized-employment adjustment bars.

This commonly includes:

• Spouse of a U.S. citizen;
• Parent of a U.S. citizen age 21 or older; and
• Qualifying unmarried child under 21 of a U.S. citizen.

Self-employment can be unauthorized employment

Immigration law does not necessarily permit a person without employment authorization to avoid the work restriction simply by calling the activity self-employment.

Matter of Tong and later USCIS decisions recognize that active self-employment may constitute employment for immigration purposes.

Relevant facts can include:

• Whether the person performed labor for the business;
• Whether the person actively managed operations;
• Whether compensation or business income was received;
• Whether the person provided services to customers;
• Whether the person reported self-employment income; and
• Whether the activity was merely passive investment ownership.

Volunteer work

Not every unpaid activity is employment.

Legitimate charitable or civic volunteering can differ from unpaid labor performed in a position that ordinarily would be compensated.

Factors requiring review include:

• Nature of the organization;
• Whether the position is normally paid;
• Whether compensation or benefits were expected;
• Whether the activity displaced an employee;
• Whether the applicant received room, board, stipends, or other remuneration; and
• Whether the activity was required as part of another immigration classification.

EAD Gaps and Employment Authorization

Employment can become unauthorized when a person continues working after employment authorization ends. Before treating a period as an unauthorized employment gap, determine whether another source of work authorization or a qualifying automatic extension covered the period.

For applicants who already filed Form I-485, including C09 EADs, pending Form I-765 applications, expiration issues and post-filing employment, see Unauthorized Employment While I-485 Is Pending.

F-1 students, CPT, OPT, and STEM OPT

Student employment authorization is highly fact-specific.

Potential violations include:

• Employment before CPT authorization;
• Work for an employer not covered by CPT;
• Work outside approved CPT dates;
• Employment before OPT begins;
• Employment after OPT ends;
• Employment inconsistent with OPT requirements;
• STEM OPT violations; and
• Unauthorized off-campus work.

H-1B, L-1, O-1, and petition-based employment

Employment authorized through a nonimmigrant petition generally remains limited by the governing classification and petition.

Possible problems include:

• Working for an unauthorized employer;
• Unauthorized concurrent employment;
• Working before portability rules permit employment;
• Continuing after petition or I-94 expiration without applicable protection;
• Working outside the scope of an approved petition; and
• Continuing employment after termination beyond any applicable authorized period.

Unauthorized Employment After Filing Form I-485

Filing Form I-485 does not itself authorize employment. An applicant who works after filing must have a valid C09 EAD, qualifying status based employment authorization, or another independent legal basis to work.

Unauthorized employment after filing can be particularly important under INA §245(c)(8) and, for qualifying employment based applicants, can continue accumulating toward the INA §245(k) 180 day limit.

See Unauthorized Employment While I-485 Is Pending for the detailed post-filing rules.

Unauthorized employment during prior U.S. stays

USCIS policy instructs officers to examine the applicant's entire U.S. employment history when applying the ordinary unauthorized-employment bars.

Departure and later lawful reentry do not ordinarily erase previous unauthorized employment for §245(c)(2) or §245(c)(8).

INA §245(k), however, uses a distinct statutory measuring period for qualifying employment-based adjustment applicants.

INA §245(k)

INA §245(k) allows qualifying employment-based immigrants to adjust notwithstanding §245(c)(2), §245(c)(7), and §245(c)(8) when its requirements are met.

The covered violations after the relevant lawful admission include:

• Failure to maintain lawful status;
• Unauthorized employment; and
• Other violations of the terms and conditions of admission.

The aggregate covered period must not exceed 180 days.

See INA §245(k).

INA §245(i)

INA §245(i) permits qualifying grandfathered applicants to seek adjustment notwithstanding ordinary subsections (a) and (c).

A qualifying grandfathered applicant can therefore potentially adjust despite unauthorized employment that would otherwise trigger §245(c).

See INA §245(i) Adjustment.

Form I-9, Social Security numbers, and false citizenship claims

The work itself and the means used to obtain employment are separate immigration questions.

An applicant may be exempt from the unauthorized-employment adjustment bar but still face serious issues if employment involved:

• A false claim to U.S. citizenship;
• A false claim to U.S. nationality;
• Use of another person's identity;
• A false Social Security number;
• Fraudulent employment documents;
• False statements on Form I-9; or
• Other material representations to a government agency.

Tax records and unauthorized employment

Paying taxes does not retroactively authorize employment.

However, tax records can become important evidence of:

• Employment dates;
• Employer identity;
• Wages;
• Independent-contractor income;
• Self-employment;
• Consistency with immigration filings; and
• Compliance with tax obligations.

Evidence used in an unauthorized-employment analysis

USCIS may examine:

• Forms I-94;
• Forms I-797;
• Employment Authorization Documents;
• Forms I-20 and CPT endorsements;
• OPT documentation;
• Pay stubs;
• W-2s;
• Forms 1099;
• Tax returns;
• Employment contracts;
• Corporate records;
• Bank records;
• Employer letters;
• Forms I-9 where available;
• Prior Forms I-485 and I-765;
• Applicant testimony; and
• Other evidence concerning the nature and duration of work.

Unauthorized employment and adjustment discretion

An applicant who falls within a statutory or regulatory exemption is not barred by §245(c)(2) or §245(c)(8) solely because the unauthorized employment occurred.

Where adjustment remains discretionary, USCIS may separately consider the circumstances surrounding the employment.

Potential factors can include:

• Duration of unauthorized work;
• Reason the applicant worked;
• Whether the applicant knowingly violated immigration rules;
• Whether false documents or representations were used;
• Tax compliance;
• Subsequent immigration compliance;
• Family and humanitarian circumstances;
• Employment and community contributions; and
• Other positive or adverse factors.

Frequently asked questions