Work Authorization While an Adjustment of Status Application Is Pending

Two different permissions. Filing Form I-485 does not by itself authorize employment, and it does not by itself cancel employment authorization that already exists. Those are separate permissions with separate sources, and an adjustment applicant may hold one, both or neither. The question is therefore not whether an Employment Authorization Document has arrived, but which permission is being relied on at any given moment.

Authorization that comes with the nonimmigrant status. Several nonimmigrant classifications carry employment authorization as an incident of the status itself, with no separate application. Those classes are listed at 8 CFR 274a.12(b) and include H-1B, L-1, O-1, E and TN workers. The authorization is tied to a particular employer and to the terms of the petition or admission. Filing an adjustment application does not disturb it, so a person in one of those classifications may continue working for the sponsoring employer exactly as before, provided the underlying status is genuinely maintained.

What the regulation says. 8 CFR 274a.12(c)(9) settles the point. For purposes of INA 245(c)(8), a person is not treated as an “unauthorized alien” within the meaning of INA 274A(h)(3) while a properly filed Form I-485 is pending final adjudication, provided that person had already obtained permission to work under 8 CFR 274a.12, or had been granted employment authorization before filing that does not expire while the application is pending. The regulation states expressly that no separate application for employment authorization is required in order to continue that employment.

Why the point once needed a memorandum. The proposition was for a time uncertain enough that the legacy Immigration and Naturalization Service issued a general counsel memorandum to resolve it, and this page formerly reprinted that memorandum in full. Its substance has since been carried into the regulation, so the regulation rather than the memorandum is the authority to cite.

The document based on the pending application. An applicant who has no status-based authorization, or who wants permission that is not confined to a single employer, may request an Employment Authorization Document under 8 CFR 274a.12(c)(9) by filing Form I-765. That document is not employer specific: it permits work for any employer, and it is the only lawful route to employment for an applicant whose nonimmigrant status carries no work authorization or has expired.

Choosing between the two. Many applicants end up holding both, and the choice of which to rely on matters. A person in H-1B or L-1 status who leaves the sponsoring employer and works instead on the Employment Authorization Document is generally no longer maintaining that nonimmigrant status. If the adjustment application is later denied or withdrawn there is then no status to fall back on, and the ability to depart and return in the nonimmigrant classification is lost as well. Working within the terms of the petition preserves the fallback position; working outside them does not.

Renewal of the document. The automatic extension that once bridged the gap between an expiring Employment Authorization Document and a pending renewal has been withdrawn for new filings. 8 CFR 274a.13(d) is now captioned “Renewal application filed before October 30, 2025,” and the extension reaches only renewal requests filed before that date; see 90 FR 48799. Renewals should accordingly be filed early enough for the replacement document to issue before the existing one expires, because a gap in the document is now generally a gap in permission to work.

Extensions of stay and the 240-day rule. A related rule protects those relying on status rather than on a document. Where an extension of stay was timely filed for a worker in one of the classifications listed at 8 CFR 274a.12(b)(20), employment with the same employer may continue for a period not exceeding 240 days from the expiration of the authorized period of stay, subject to the conditions noted on the original authorization and ending on notification of a denial.

Travel while the application is pending. Departure from the United States while an adjustment application is pending is treated as abandonment of the application unless advance parole was granted before departure and the applicant is inspected and paroled on return, 8 CFR 245.2(a)(4)(ii)(A) and (B). The regulation provides narrow exceptions for applicants in lawful H-1 or L-1 status, for their H-4 and L-2 dependents, and for K-3, K-4 and V nonimmigrants, at 8 CFR 245.2(a)(4)(ii)(C) and (D). The mechanics are set out on the page on advance parole.

Immigrant intent. An adjustment application is a declaration of intent to remain permanently, which sits awkwardly with classifications that require a foreign residence the applicant has no intention of abandoning. 8 U.S.C. 1184(h) removes the difficulty for the H-1B, L and V classifications by providing that having sought permanent residence is not evidence of an intention to abandon a foreign residence. Classifications without that protection carry real risk on readmission or on application for a new visa, a point developed further on the page on the H-1B visa for temporary professionals.

Why the distinction matters. Employment without authorization can itself defeat the adjustment application. INA 245(c)(2) bars adjustment for a person who accepted unauthorized employment before filing, who is in unlawful immigration status on the filing date, or who failed to maintain lawful status continuously; INA 245(c)(8) bars adjustment for a person who was employed without authorization or who otherwise violated the terms of a nonimmigrant visa. USCIS treats immediate relatives of United States citizens, self-petitioners under the Violence Against Women Act, special immigrant juveniles and several other groups as exempt from both bars.

The 180-day allowance in employment-based cases. 8 U.S.C. 1255(k) sets aside the bars at subsections (c)(2), (c)(7) and (c)(8) for applicants eligible under the first, second, third or fifth employment-based preference, and for certain religious workers, if the applicant is present pursuant to a lawful admission and has not, since that admission, for an aggregate period exceeding 180 days failed to maintain lawful status continuously, engaged in unauthorized employment, or otherwise violated the terms and conditions of admission. The 180 days is an aggregate across all three kinds of violation rather than a separate allowance for each, and the provision does not reach family-based applicants.

The practical rule. Where a nonimmigrant status authorizes the work, continuing under that status is ordinarily the safer course while the adjustment application is pending, because it preserves a fallback. The Employment Authorization Document is the right instrument where there is no status-based authorization, where a change of employer is needed, or where the status is about to lapse. What has to be avoided is the interval in between, in which the status has ended and the document has not yet issued.

Immigration Topics

Employment Authorization Document