Working in the US

What this page covers. This page is a broad map of how a foreign national becomes able to work lawfully in the United States. It sets out the basic rule, the three ways permission arises, the difference between temporary work categories and permanent employment-based immigration, and the role of the labor market test that stands between many applicants and a green card. It assumes the reader does not already hold permanent residence or another status that carries work permission. Every subject named here is treated at length elsewhere in this handbook, and the links at the end lead to those pages.

The basic rule runs through the employer. Under 8 U.S.C. 1324a(a)(1), it is unlawful to hire a person who is not authorized to work, and unlawful to hire anyone at all without completing the verification process described in 8 U.S.C. 1324a(b). A person who is neither a permanent resident nor otherwise authorized by statute or by the agency is an unauthorized worker, as 8 U.S.C. 1324a(h)(3) defines the term. Work permission is therefore not a private matter between a worker and an employer; it is a precondition that both sides must document at the point of hire.

Permission arises in one of three ways. The organizing provision is 8 C.F.R. 274a.12, which sorts everyone into three classes. Some people are authorized incident to their status and without restriction as to employer or type of work, which is the position of a permanent resident. Others are authorized incident to status but only for a specific employer and subject to the conditions of the category, which is the position of most temporary workers. The remainder must apply for permission and receive a document evidencing it before working at all. Almost every practical question about working in the United States is really a question about which of those three classes applies.

Employer-specific permission is normally petitioned for by the employer. For the principal temporary work categories, 8 U.S.C. 1184(c)(1) places the question in the hands of the importing employer, who files the petition and must have it approved before a visa issues. The consequence is often misunderstood: the permission belongs to a particular job with a particular employer, not to the worker in the abstract. Moving to a different employer generally requires a new petition, and a change in the terms of the job may require an amended one.

Some categories add a labor market condition and a numerical limit. The specialty occupation category requires the employer to file a labor condition application with the Department of Labor under 8 U.S.C. 1182(n), attesting among other things to the wage that will be paid. What counts as a specialty occupation is defined at 8 U.S.C. 1184(i) by reference to a body of specialized knowledge and a degree requirement in the specific field. Several categories are also capped: 8 U.S.C. 1184(g) sets annual numerical limits, so that availability rather than eligibility can decide whether a case can proceed in a given year.

Work that is incidental to another status. Some categories admit a person for another purpose and allow employment only as a controlled exception. A student may request practical training under 8 C.F.R. 214.2(f)(10), which is permission applied for rather than permission that comes with the visa. A visitor for pleasure may not work at all, because 8 C.F.R. 214.1(e) prohibits it outright. A visitor for business is on narrower ground than is often assumed: 22 C.F.R. 41.31(b)(1) treats business as conventions, conferences, consultations and comparable professional activity, and expressly excludes local employment or labor for hire. Attending to an employer's affairs is not the same as being employed here, and the distinction matters.

Traders and investors. A separate route exists for a national of a country with a qualifying treaty of commerce with the United States. Under 8 U.S.C. 1101(a)(15)(E)(i) a person may come to carry on substantial trade principally between the two countries, and under 8 U.S.C. 1101(a)(15)(E)(ii) a person may come solely to develop and direct an enterprise in which a substantial amount of capital has been invested or is actively being invested. Eligibility turns on the existence of the treaty, so nationality controls access to the category in a way that has nothing to do with the applicant's qualifications. This is a temporary status, not a permanent one.

Permanent employment is a different system. Employment-based immigration runs on the preference structure at 8 U.S.C. 1153(b): priority workers at 1153(b)(1), which covers extraordinary ability, outstanding researchers and certain multinational managers; members of the professions holding advanced degrees and persons of exceptional ability at 1153(b)(2); skilled workers, professionals and other workers at 1153(b)(3); certain special immigrants at 1153(b)(4); and employment creation through investment at 1153(b)(5). Each preference receives a share of a limited annual supply, and per-country limits apply on top, so waiting is a structural feature of the system rather than an administrative failure.

Labor certification, and who escapes it. For much of the permanent system the employer must first obtain a certification from the Department of Labor. Under 8 U.S.C. 1182(a)(5)(A) the Secretary must certify that sufficient able, willing, qualified and available United States workers are not to be found for the position at the place of employment, and that employing the applicant will not adversely affect the wages and working conditions of workers similarly employed; 20 C.F.R. part 656 sets out the process. The requirement is narrower than the old shorthand suggests. By 8 U.S.C. 1182(a)(5)(D) it reaches only the second and third preferences, so priority workers and investors stand outside it, and within the second preference the national interest waiver at 8 U.S.C. 1153(b)(2)(B)(i) can excuse both the job offer and the certification.

Sponsorship by an employer and self-sponsorship are not evenly matched. Most permanent employment cases begin with an employer willing to sponsor, because most preference categories are built around an offered position. Self-sponsorship exists, but it is confined to the routes where the statute dispenses with the job offer, principally extraordinary ability under 8 U.S.C. 1153(b)(1)(A), the national interest waiver, and investment under 8 U.S.C. 1153(b)(5). Those routes ask the applicant to prove a great deal about themselves rather than about a vacancy, and the evidentiary standard is correspondingly demanding.

A temporary work category is not a stage of the permanent process. The two systems have separate requirements, separate decision makers and separate outcomes, and holding one status confers no entitlement to the other. They do interact in one important respect: 8 U.S.C. 1184(h) provides that pursuing permanent residence is not, by itself, evidence of an intention to abandon a foreign residence for certain categories, which is why some temporary workers may hold an immigrant petition without jeopardizing their status while others may not. Whether a given category tolerates that overlap is one of the first things worth establishing.

Working without permission has consequences that outlast the job. Accepting unauthorized employment ordinarily bars adjustment of status under 8 U.S.C. 1255(c)(2), subject to the narrow allowance for certain employment-based immigrants at 8 U.S.C. 1255(k). It can also amount to a failure to maintain status with its own consequences, and it exposes the employer to liability under 8 U.S.C. 1324a. A short period of unauthorized work can therefore close off options that would otherwise have remained open years later.

Related pages. The temporary work categories are described at Common Work Visas, within the wider survey at Temporary Visas (Work, Study, Tourist). The permanent routes are covered at Employment Based green cards and, more generally, at Permanent Residency (Green Cards). The labor market test has its own section at Labor Certification. Requirements that turn on a particular profession are collected at Occupations. The employer's side of the same transaction is treated at Hiring Foreign Workers. For the parent section of this handbook, see Other Matters, and to discuss a particular situation, see Contact.