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.
After that, you (the beneficiary) will need to complete the procedure through consular processing if you are outside the U.S. or by filing an I-485 to adjust your status to permanent resident if you are already in the country.
While the marriage-based green card is being processed, some applicants are permitted to work in the U.S. provided they meet the criteria. To know whether these requirements are applicable in your case, this article takes you through two immigration and labor factors that determine work eligibility:
- The United States immigration law regarding hiring an alien employee
- How to work legitimately while waiting for your marriage-based green card
What is U.S. Immigration Law on Hiring an Alien Employee?
According to the immigration law and hiring decisions, employers may only hire those who are eligible to be employed in the U.S. The qualified individuals are United States citizens, lawful permanent residents (green card holders), and aliens who are 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:
- Working with a valid nonimmigrant work visa
- Working with an Employment Authorization Document
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.
If you entered the U.S. through any of these visa categories, such as the L-1 or H-B, and your status is still valid, you can continue working legally while your marriage-based green card is being processed. 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, which also allows you to work while the green card is being processed.
Working with an Employment Authorization Document While Waiting for a Marriage-Based Green Card
Typically, the marriage-based card processing time takes several months to be completed. 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 your green card to be issued by the USCIS. 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 violation of labor law that attracts a heavy penalty and may adversely 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 petition. If you didn’t file an I-765 along with your status adjustment petition, you can still do so separately.
As previously mentioned, to register for a work permit, you will need to complete an I-765. The form will be submitted with a copy of your I-485 receipt of notice or other documents as evidence that 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
- Proof 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 within 90 days after the receipt of 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.
This may seem like a long time, but it is worth waiting for since the permit is your only means of employment in lieu 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 filling 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. You will be notified when the USCIS receives the form as well as when it is finally approved. 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 manually expedite the process.
Employment Authorization Processing Fee
As of July 2019, the filing fee for I-765 is $410. However, if you filed the form concurrently with your for 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.
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 in order 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 very difficult to find a job without a work permit or valid work visa due to the fact that 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 both 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 Is Being Processed?
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.