Shilpa Malik 
One of the most explicit immigration laws in the United States is the government’s stance against unauthorized employment. It is a violation of the country’s immigration and labor laws, which can attract heavy punishments. According to the United States Citizenship and Immigration Services (USCIS), unauthorized employment is any labor or service performed for an employer within the U.S. by a foreign national who is not authorized to accept employment.
It also involves working beyond the period or scope of one’s employment authorization. While this may look simple on paper, what constitutes lawful work in the U.S. is more than working for an employer. There are several other actions that could be deemed unauthorized employment.
This is one of the most confusing topics for many foreign nationals in the United States. Without a clear understanding of the law, you could unwittingly violate your immigration status. For this reason, it is essential to seek guidance whenever making an employment decision. You may be engaging in unauthorized work by participating in any of the following:
Being Employed Without Authorization
Being employed by a company or an individual without proper authorization could be deemed illegal employment. Both you and your employer will answer to the law if you are caught.
Unauthorized work is not limited to working for an organization or individual. If you establish or run a business in the United States without the required approval, even if you do it on a part-time basis, it will be considered unauthorized employment.
Volunteering
You do not need a work permit to volunteer in the U.S. However, there are rules concerning volunteering in the country. Volunteering means donating your time with an organization primarily set up to provide charitable or humanitarian deeds without any form of compensation or remuneration.
Furthermore, in order to protect the jobs of United States citizens and guard against the exploitation of workers, volunteering is generally not allowed in a position that should be filled by a paid worker. For instance, it may be considered an unfair arrangement to work for free in a position that is performed by a paid person, even if it is solely for the purpose of gaining experience. This is because your free service may be denying someone paid work.
Also, playing an active role in the creation of a company may be deemed unlawful if you don’t have proper authorization to do so.
Passive Investment Is Allowed With Stipulations
Foreign nationals are allowed to make financial investments to generate capital gain without a work permit. Investment in the stock market, bonds, or other forms of savings that bring returns is permitted. You can also invest in a private company as a passive investor. However, playing an active role in the day-to-day running of a business or active Forex trading could be considered unauthorized employment.
A very good example is the case of Wettasinghe versus USCIS, where a student was found to have violated his status for investing in and being actively involved in running a business. Wettasinghe bought a fleet of six ice cream trucks and leased them to people for the purpose of selling ice cream on the streets. His active involvement included the regular buying of ice cream and stocking the trucks, plus occasionally driving the trucks when a driver was unavailable. The court ruled that his activities were akin to unauthorized employment and affirmed his deportation or voluntary departure order.
How About Internet Freelancing?
The law seems to be somewhat murky in this area. However, remote freelancing could be deemed a home business even if it is done on the internet. If your status does not allow employment in the United States, you may be violating immigration law. Discuss this specific scenario with your immigration attorney before engaging in any work.
One of the most frequently asked questions about U.S. labor law is whether or not the USCIS will find out if one engages in unlawful employment. In this age of information, it has become unrealistic to assume this. The immigration agency has the means to discover instances of unlawful employment, and when they do, the consequences will be grievous. Some of the ways the USCIS can detect unauthorized employment include:
Tax Records
If the unlawful job involves filing a tax document like a Form 1099, the USCIS may find out through your income tax. While this is the jurisdiction of the IRS, the USCIS can simply request the information from them.
Through the Internet
In today’s age of social media where almost every activity is being shared online, with just a simple search about you or your employer, the USCIS can have access to evidence confirming unauthorized work. Even if you are very smart and don’t share such information on the internet, you never know when a colleague or other person might share a group picture of you at work on Facebook, Twitter, or Instagram.
Someone Might Report You
Even when the employment is under-the-table work within your neighborhood, someone might suspect and report you. If it is in an organization with multiple employees, you might also be reported by a coworker. The report could lead to an investigation by the USCIS.
What if I’m an F1 student and have an idea for a business?
Based on the laws surrounding the F1 visa you cannot work off-campus but you can accept on-campus work. But what if you have a great business idea? Well, you can take steps to lay the framework of the business and then after graduation you can get OPT work authorization to follow through on it. Unauthorized employment under F1 is greatly frowned upon. If you have concerns or confusion whether the work you are doing violates immigration law, seek help from your immigration attorney.
If you find yourself receiving a notice that your I-485 was denied due to unauthorized employment the first call you should make is to your immigration lawyer. They will help you strategies ways to possibly appeal the denial and/or gather evidence in your favor that the work was authorized.
Engaging in unauthorized work could lead to penalties, which include:
Deportation
Removal proceedings could be initiated against you if you have been found to have violated your status by engaging in unauthorized employment. If you are found guilty, you will likely be deported to your home country.
Ineligibility to Extend or Change Status
If you are on a work or student visa and you are considering changing or extending your status someday, engaging in unlawful work may just jeopardize that goal. According to immigration law, a foreign national must abide by the terms of his status, one of which is compliance with labor laws. Violating this makes you ineligible to change or adjust your status.
Inadmissibility Grounds for Future Entry
Engaging in unauthorized employment could lead to a cancellation of your visa. And, if you want to reapply in the future, the record will stand against you.
Ineligibility for Status Adjustment
Unauthorized employment places a bar on your status adjustment. It doesn’t matter if the time of the unlawful work is before or after filing the adjustment of status petition, you will be considered ineligible to become a green card holder. For example, during your status adjustment procedures, you will be asked to indicate whether or not you have engaged in unauthorized employment in the U.S. Unless you willingly decide to lie, you will have to admit it. Keep in mind that lying in your petition could be deemed falsification, which is another serious offense.
What If I Need to Work and I Don’t Have an Authorization?
It is understandable that everyone needs to earn an income to meet everyday needs. However, that should not be leveraged as grounds to engage in a violation of your status.
If you are in the United States on a work visa, it is believed that everything about employment must have been taken care of right from the onset of your visa application. You, therefore, need to stick to the scope and period of employment allowed by your status.
If you are on a student visa, there are several legitimate ways for earning an income by doing either on-campus or off-campus work. Just ensure you get proper documentation from the appropriate source.
Also, some people on visitor visas are trying to work in the United States which is an outright violation of their status and should not be considered at all. If you are under a visitor visa and you must work, the right thing is to apply for an employment-based visa. You can also opt for a student visa which will allow you to study and work on a part-time basis for a limited number of hours per week. However, you must not assume that you have the right to start working until your application has been approved by the USCIS.
Can I work for a foreign-based company?
According to the laws, this isn’t allowed either even if they are paying you through a foreign bank account. It is still seen as employment.
How to Obtain Work Authorization
The general work permit in the United States is officially known as the Employment Authorization Document (EAD). It is a way to prove that you are lawfully allowed to work in the United States for a specific period of time. If you are not a U.S. citizen or lawful permanent resident, you will need to obtain an EAD to work in the U.S.
Eligibility for EAD
The EAD application can be filed by foreign nationals under the following statuses:
- Nonimmigrant work visas
- Students and exchange visitors
- Asylee and asylum seekers
- Foreign nationals with a pending green card application
- Fiancés and spouses of United States citizens
Process of Obtaining Employment Authorization Document
To request an Employment Authorization Document, you will need to file an I-785 form. This same form is used for renewing or replacing an expired or lost EAD. Your application must be submitted alongside the following supporting documents (as applicable to each applicant):
- A copy of your Nonimmigrant Arrival-Departure Record, I-94 (front and back).
- Your passport or other travel documents
- A copy of your last EAD, if you have been issued one
- Your G-28 form, if an accredited representative or attorney is representing you
- A copy of any government-issued identity
- The final note of eligibility resettlement and your I-797 form (for refugee applicants)
Penalty for Working on a Tourist Visa USA
You should not violate the terms of your tourist visa, which explicitly forbid working. See the section above titled ‘Consequences of Unauthorized Employment’ for an overview of possible penalties you may incur. The best course of action is to apply for a work visa if you have a desire to work in the United States.
Permissible Activities on B2 Visa
- Tourism or social visits to friends/family
- Medical reasons
- Engaging in social activities
- Amateur athletes or entertainers
- Dependents of crewmen or armed forces
Can a B2 visa holder apply for a work permit?
No, they are not permitted.
In very select cases they have forgiven unauthorized employment but this does not mean you should engage in it unless you don’t care about jeopardizing your status in the U.S. Officials take unlawful conduct very seriously and will have no qualms issuing deportation orders if necessary.
Can My Spouse Get Employment Authorization?
Yes. Spouses of foreign nationals may obtain work authorization and work in the U.S. Most U.S. visa classifications have derivative visas for the immediate relatives of the principal beneficiary. For instance, if you are on an H-1B visa, your spouse can apply for and obtain an H-4 visa. Similarly, an O-1 visa’s spouse can also get an O-3 visa.
Related Post:
H-4 Visa: Processing Time, EAD Work Permit, Application, Process in 2023
For the exchange visitor category, spouses and dependents of a J-1 student can also get J-2 visas.
The J-2 files the Application for Employment Authorization (I-765) with the applicable Service Center, along with documentation demonstrating that the employment is not required to support J-1 (this is most easily proven with evidence of the salary paid to the J-1).
These derivative visas allow the holders to apply for and obtain employment authorization by following the same procedures above. While the process might take some time, it is worth the wait considering the severe penalties that unauthorized employment carries. Therefore, there is no excuse for engaging in unlawful employment.