The ability to work not only allows you to support yourself and your family financially, but can also be important to your sense of self-esteem. If you’re applying for a marriage-based green card from within the United States, you might be eager to start or continue your professional life here. If you want to work while you’re waiting out the 9-12 months for your marriage-based green card application to be processed, however, you’ll need a work permit, also called an Employment Authorization Document (EAD).
(If you’re applying for a marriage-based green card from abroad, you can’t get a separate work permit ahead of time—your work authorization simply begins once you enter the United States and receive your green card.)
Working in the United States without authorization is taken quite seriously by U.S. Citizenship and Immigration Services (USCIS), and doing so could put your entire green card application at risk. It’s important to remember that just because you have legal status to be present in the United States does not automatically mean that you have permission to work.
Unless you have some other immigration status that allows you to work (e.g. H-1B), it’s important that you don’t do any kind of paid work until your work permit has arrived.
The good news is that getting a work permit is a relatively easy process, especially if you file the work permit application at the same time as the rest of your marriage-based green card application. Here’s what you need to know about getting permission to work in the United States while you’re waiting for your green card.
When and how to apply for a work permit
In general, it takes around 90 days for USCIS to process work permit applications.
Important note: The typical 90-day processing time for a work permit application may be on the rise, to 150 days or even longer. See details here.
You apply for a work permit with USCIS’ Form I-765 (“Application for Employment Authorization”). You can file this form along with your marriage-based green card application (Form I-485) or at any time after you’ve gotten a notice that USCIS has received your green card application. If you apply for a work permit in the same package with your green card application, you simply need to include a completed Form I-765 and two passport-sized photos. There is no fee for filing a work permit application if it is included in the same package as your green card application (as long as your I-485 was filed after July 30, 2007).
Even if you’ve already submitted your green card application, you can still apply for a work permit by filing Form I-765 along with a copy of the notice from USCIS showing that your green card application (including the I-485 filing fee) was received.
Who is not eligible for a work permit?
According to USCIS, if you are eligible for a marriage-based green card, you are also eligible for a work permit. As long as you have a pending green card application (Form I-485), you may apply for the work permit.
There are two primary reasons that your work permit might be denied, however. The first is if you filled out the work permit application form incorrectly, forgot to sign it, or left out a required element (for example, if you applied for the work permit after your green card application, and you failed to include a copy of the original USCIS receipt notice). The second, less common reason for denial is that your green card application is processed so quickly that you already have an approved green card before your work permit application is finished being processed. This is a good (if rare) problem to have, since once you have a green card, you don’t need a separate work permit in order to legally work.
What if you already have work authorization?
It’s not uncommon for someone who came to the United States as a student or through a temporary work visa to meet and fall in love with their spouse in the United States. If you are already working in the United States with a valid H-1B visa, through the Optional Practical Training (OPT) program for recent graduates, or through any other work visa, you don’t have to stop working just because you’re applying for a green card. But it’s still a good idea to submit an application for a work permit when you apply for your marriage-based green card. That’s because there are no obvious disadvantages to having two types of work authorization at the same time, and having a work permit based on your green card application gives you peace of mind—for example, in case your H-1B visa isn’t renewed, or if you’d like to switch employers or start your own business. The work permit based on your green card application is an “open market” Employment Authorization Document—that is, it doesn’t tie you to one particular sponsoring employer.
Renewing your work permit
It’s important to avoid any gaps in employment authorization, and to remember that your work permit only lasts one year. Fortunately, you can apply for a renewal work permit as early as 120 days (4 months) before your current one expires. To be on the safe side, it’s a good idea to renew as early as possible, even if you expect that your green card will be approved before your current work permit expires. Remember—if your work permit expires before your green card application is approved and you haven’t renewed it, you’ll be forced to take a vacation from any income-producing activities, whether you’re an employee or if you own a business. To renew your work permit, you will file another Form I-765 with a copy of the USCIS receipt notice showing that you have a pending green card application. You’ll also need to include a copy of your current work permit and two passport-sized photos. Renewal work permits generally take about 90 days to process, so again, it’s important to start the renewal process early. (Again, note that this processing time may be on the rise, to 150 days or longer; see details here.)
Getting ready to work
If you’ve never worked in the United States before, you’ll need to get a Social Security number (SSN) as soon as you get your work permit. Under the previous Form I-765, obtaining a Social Security Number could not be done through the work permit application itself. You had to go to your local Social Security Administration office, fill out the application for a Social Security number, and show the officer your passport and your work permit. Your Social Security card would then be mailed to whatever address you provided on your application form. Fortunately, in late 2017 USCIS introduced a new and improved Form I-765, which now allows you to apply for a Social Security number or replacement Social Security card directly through the work permit application itself, without having to visit the local Social Security Administration office. Although it is not required that you apply for a Social Security number using the revised form, doing so will save you a lot of time and paperwork. (Note that beginning on December 4, 2017, USCIS is not accepting the old Form I-765.) When you start work, your employer is required to have you complete an I-9 form and to show proof that you are allowed to work in the United States. As long as you have a social security number and a work permit, it’s illegal for employers in the United States to discriminate against you because of your immigration status. You’ll be required to pay payroll and income taxes in the United States, just like everyone else.
Failure to pay required taxes can result in many serious penalties and can jeopardize any future application for U.S. citizenship.
Consequences of Working Without Authorization
Working in the United States without a work permit can put your entire green card application at risk. USCIS will closely scrutinize any green card application from an applicant who has previously worked without authorization. USCIS can overlook unauthorized employment only in some very specific situations—for example, spouses of U.S. citizens who have previously worked without authorization will not be barred from receiving a green card. The penalties for working without authorization include being barred from entering the United States for three or ten years, depending on how long you were working without a permit. For example, if you work without authorization while in the United States on a tourist visa and later apply for a student visa, your unauthorized employment will make you ineligible for that student visa. You are required to have a work permit even for short-term or informal employment. Getting paid for even just a few hours of work without authorization can cause serious immigration problems in the future. Fortunately, applying for a work permit is relatively easy, especially if you submit the application at the same time as your green card application. Having a work permit means you’ll be able to start (or continue) your career in the United States well before your green card application is processed. Even if you’re unsure whether you’ll be working in future, it’s a good idea to apply for a work permit in case an excellent professional opportunity comes along!