There are two ways through which you may be eligible for a marriage-based green card. One is by being the spouse of a U.S. citizen, and the other is to marry a lawful permanent resident (LPR) in the U.S. In either case, your U.S. citizen or permanent resident spouse will have to sponsor your green card by submitting an I-130 petition to establish that your marriage is indeed bona fide.
If applicants meet certain criteria, they can work in the U.S. during the marriage-based green card process. This article takes you through two immigration and labor factors that determine work eligibility:
- U.S. immigration law regarding hiring an alien employee
- How to work legally while waiting for your marriage-based green card
What is U.S. Immigration Law on Hiring a Foreign Employee?
According to the immigration law and hiring decisions, employers may only hire people legally able to work in the U.S. The qualified individuals are United States citizens, lawful permanent residents (green card holders), and aliens expressly authorized by the USCIS to be employed.
As an applicant waiting for a green card, you may qualify to work under the category of “expressly authorized aliens” provided you meet the requirements. So, in light of this law, there are two scenarios under which you can legitimately work while waiting for your marriage-based green card:
- Have a valid nonimmigrant work visa
- Hold an Employment Authorization Document (work permit)
Working With a Valid Nonimmigrant Work Visa While Waiting for Your Green Card
Some aliens enter the U.S. through employment-based temporary visas that allow them to work for a particular employer. These types of visas are known as work visas and are usually renewable.
Suppose you entered the U.S. through any of these visa categories, such as the L-1 or H-1B, and your status is still valid. In that case, you can continue working legally while your marriage-based green card is undergoing processing. Your work must, however, continue to adhere to the guidelines of the visa.
However, if you don’t currently have a work visa, you may apply for an Employment Authorization Document, allowing you to work while the green card is going through processing.
Working with an Employment Authorization Document While Waiting for a Marriage-Based Green Card
Typically, the marriage-based card processing time takes several months. Depending on your case, if you have applied as the spouse of a U.S. citizen, you may need to wait for 10-12 months. As a lawful permanent resident spouse, however, the waiting time could be upwards of 30 months.
The processing time also depends on the service center processing your petition. During this time, the USCIS understands that applicants may need to travel overseas and/or work in the United States to earn a living while the green card is pending. Due to this, the immigration law allows individuals to file for travel permits using the I-131 and work permits (popularly known as Employment Authorization Documents) using the I-765 concurrently with their marriage-based green card petition.
These two forms have shorter processing times, and, after approval, you may work in the U.S. while waiting for USCIS to issue your green card. So, if you filed an I-765 with your status adjustment petition, you will have to wait for the I-765 to be adjudicated by the USCIS before you can work.
Any work you engage in without a valid work visa or an employment authorization card will be considered unauthorized employment. Unauthorized employment constitutes a labor law violation that attracts a heavy penalty and may affect your green card processing.
I Didn’t File An EAD With My I-485. Can I Submit My I-765 Separately?
Because the work permit is optional, some marriage-based green card applicants overlook it when submitting their petitions. If you didn’t file an I-765 along with your status adjustment petition, you can still do so separately but be sure to submit it to the appropriate service center (the one processing your petition).
As previously mentioned, to register for a work permit, you will need to complete an I-765. Submit your form with a copy of your I-485 receipt of notice or other documents proving your status adjustment petition is pending. You will send the I-765 with the following documents:
- Two identical passport photographs
- A front and back copy of your I-94, Nonimmigrant Arrival-Departure Record
- A G-28 form if you are to be represented by an attorney
- A copy of any government-issued identity document
- Proof of your current nonimmigrant status
- Evidence of your bona fide relationship with your U.S. citizen or lawful permanent resident spouse
- I-797C Notice of action
How Long Does it Take to Process a Work Permit Application?
Until recently, the USCIS processing time for a work permit application was 90 days after receiving the petition. However, the available evidence in the past few years shows that the processing time has increased recently. Now, EADs are taking up to 5 to 7 months before they are issued. Click here to check the most up-to-date processing times from USCIS.
This may seem like a long time, but it is worth waiting for since the permit is your only means of employment in place of a nonimmigrant work visa. Once the EAD is issued, you will be able to work without restrictions in the U.S., either on a full-time or part-time basis (except for jobs that require U.S. security clearance).
You may also follow up on the progress of your petition by filing and attaching your G-114, Application Acceptance to the first page of the I-765 before submitting. This will let you receive updates on your application. USCIS will notify you when it gets the form as well as when it is finally approved. In addition, your employment authorization card, a plastic-laminated I.D., will be mailed to you after approval.
Can I Use the Premium Processing Service for the Employment Authorization Document?
Unfortunately, there is no premium processing for an EAD, and there is no way to expedite the process manually.
Employment Authorization Processing Fee
As of November 2021, the filing fee for I-765 is $410. However, if you filed the form concurrently with your marriage-based green card petition, you will be exempted from paying fees. If you are filing separately, you could still get a waiver for the fee if you submit your I-797C Notice of Action for your I-485 with the EAD application. According to USCIS, an additional $85 biometric service fee will apply if you fall under one of the following categories:
(c)(8) An applicant with a pending asylum application requesting an initial or renewal EAD;
(c)(33) Requesting consideration of Deferred Action for Childhood Arrivals (DACA);
(c)(35) A beneficiary of an approved employment-based immigrant petition and you are facing compelling circumstances;
(c)(36) A spouse or unmarried dependent child of a beneficiary of an employment-based immigrant petition who is facing compelling circumstances; or
(c)(37) An applicant for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status.
Will I Still Need an EAD After Receiving My Marriage-Based Green Card?
The EAD is just a temporary means of securing employment. Once your green card is issued, you will not need the EAD anymore. There are many employment-related benefits attached to your marriage-based green card. Unlike nonimmigrant visas that require applicants to work for a particular employer to keep their status, valid green card holders can work wherever they want in the U.S. and for almost any employer.
What Happens if I Work Without A Work Permit?
It may be challenging to find a job without a work permit or valid work visa because most U.S. employers will ask for it before they offer employment. Even if you manage to get employment without authorization, you will be putting yourself and your employer in a precarious situation as there are heavy penalties if discovered.
Since it generally takes just a few months to get an EAD, it is better to be patient instead of seeking unauthorized employment that could affect your immigration status.
Can I Return to My Country to Work While My Marriage-Based Green Card Processing?
You may return to your home country while your petition is pending with the USCIS. However, you will need to get your travel permit before you can do that. Traveling without an approved permit will be considered an abandonment of the green card process, and you may have to restart the entire process.
Both travel and work permits generally have equal processing times. If you have both, you can choose to either look for a job in the U.S. or return to your country to work until your marriage-based green card is approved.
How Long to Get Work Permit After Marriage?
Applicants who are married to U.S. citizens can submit Form I-765 concurrently with Form I-485. Doing so saves valuable time and reduces the time it will take to obtain a work permit after getting married. Typically, you can expect it to take between five to seven months to receive the employment authorization document (work permit). If you are married to a lawful permanent resident, the time frame to get a work permit after marriage can be considerably longer. Individuals in this situation typically wait 19-25 months first to get an immigrant visa number, and then you can submit Form I-485. If an immigrant visa is readily available from the get-go, then you have the option to file Form I-765 at the same time as Form I-485, just as someone married a U.S. citizen could do. Again, after filing Form I-765, it takes approximately five to seven months for USCIS to process the paperwork and issue the employment authorization document to the alien spouse.
Frequently Asked Questions
Can I work while my I-765 is pending?
No, you are not allowed to work while your I-765 is pending. However, if you receive a job offer and your I-765 is pending, it is best to be transparent with the employer and tell them that you can only begin working when USCIS has approved your form.
Can you file Form I-765 at a different time than Form I-485?
Yes, you always have that option, although most applicants opt to file them concurrently to save time in the process and receive their work permit faster.
How long is a work permit (based on pending I-485) valid?
These are valid for two years. To renew your EAD, you need to file a new I-765 if it will expire or already is expired.
How much does it cost to renew my EAD?
The renewal fee is $410 (the same as the cost to initially apply).
Will I need to apply for another employment authorization document (work permit) after receiving my green card?
You will not need to because an EAD is used for work authorization while you await your green card.
Can I travel overseas with my EAD?
The EAD doesn’t permit you to travel overseas; it grants you the ability to work in the United States while you await your green card. To get permission to travel abroad, you need to apply for Advance Parole (A.P.). You can do this by submitting Form I-131. It is possible to submit both the I-131 and the I-765 simultaneously so that you get both work and travel permissions from the government.
Can I apply for a work permit when I am overseas?
No, you cannot if you live abroad.
Can I submit a work permit application if I have not yet filed my green card application?
No, you can either file it along with your green card application (I-485) or after you receive a notice stating USCIS has received your application.
How long does it take to get a work permit in 2021?
In 2021 it is taking USCIS approximately 5-7 months to process work permit applications.
Can I work while waiting for a green card through marriage?
You can work if you receive legal work authorization (EAD) while your green card application is undergoing processing.
Can you live in the U.S. while waiting for a green card?
Yes, you are permitted to stay in the United States while your green card application is pending.