NSC on Unauthorized Employment in I-485 Context - June 2007
Posted Jun 08, 2007
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Guidance regarding the issue of unauthorized employment was issued by the Nebraska Service Center (NSC) in June 2007. This guidance is contained in notes from an American Immigration Lawyers Association (AILA) meeting with the NSC that occurred in April 2007. The subject of unauthorized employment is important. Engaging in unauthorized employment is a status violation and, among other penalties, can result in the inability to adjust status to permanent residence. The questions regarding unauthorized employment were raised with the NSC in the context of filing the I-485, application for adjustment of status (AOS).
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What is Employment?
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For I-485 purposes, employment means any service or labor performed by an employee for an employer within the United States. Once a person is in the U.S., any employment performed needs to be authorized by the USCIS in one form or another. Some statuses are authorized to work "incident to status." This means that the individual's status alone allows employment (subject to certain restrictions) without additional authorization. An H1B is one of these categories that allows work with only the H1B-sponsoring employer/s. Some other categories of foreign nationals can obtain employment authorization, but must request that authorization from the USCIS.  
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Unauthorized Employment Can Prevent Approval of AOS
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The law prohibits a person who accepts or continues in unauthorized employment prior to the filing of an I-485 from adjusting status to permanent residence. There are a variety of other rules and definitions, but the basic idea is that unauthorized employment generally prevents adjustment of status, unless there is an exception that applies.
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Exception for Employment-Based Cases Up to 180 Days
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For employment-based I-485 cases, there is a provision that allows the USCIS to "overlook" up to 180 days of unauthorized employment. This does not mean that one should go out and work without authorization for 180 days or that there are not other potential consequences. It just means that if a person accidentally happens to work without authorization (the ways in which this can occur are outside the scope of this article), s/he will still be eligible to file the I-485 in an employment-based case, as long as the violation is under 180 days. One way in which people often engage in unauthorized employment without intending to do so is described in our July 29, 2005 article, Home-Based Businesses: Inadvertent Unauthorized Employment, available on MurthyDotCom.
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Method for Counting 180 Days
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The 180 days includes unauthorized employment both BEFORE the filing of the I-485 and AFTER. So, if one works without authorization for 170 days BEFORE filing, s/he could still file the I-485. However, if the individual keeps working without authorization for an additional 11 days, s/he will not be eligible for approval of the I-485 application.
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The unauthorized employment is counted from the time the employment begins until either employment authorization is granted or the employment is terminated. The USCIS's current interpretation counts the days in the period of unauthorized employment, including routine absences from work such as weekends, vacations, and sick leave. Thus, if a person starts work on day 1 and remains employed and working through day 181, s/he will have exceeded the 180-day provision. This is true even if the individual did not come to work literally each and every day, due to weekends, vacations, sick leave etc.
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The time toward the 180 days is counted from the last lawful admission prior to filing the I-485. It should be noted that work is not defined by compensation. Therefore, simply not getting paid does not resolve the problem, unless the efforts clearly fit within the nature of voluntary work for a nonprofit agency, in many cases.
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Conclusion
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We at the Murthy Law Firm hope this explanation is helpful for many, as they plan to file an I-485 with the priority dates moving forward substantially. It is important to be mindful of the rules on unauthorized employment, and not try to stretch these rules. It is important to make sure that one has the appropriate approval for employment and, if limited to working for a particular employer (such as is the case with H1Bs), that no other employment is performed.