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Immigration Classifications and Legal Employment in the United States

by Neil Gibbs last modified Aug 10, 2008 10:30 PM

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INTRODUCTION

Individuals in certain immigration categories have an unrestricted right to work and study in the United States. Individuals in numerous other categories have similar rights subject to certain restrictions. This information provides a general description of various visa categories and outlines pertinent restrictions on employment and study. Is also provides information on the documentation required to allow foreign nationals to be legally employed.

In 1986 the U.S. Immigration and Naturalization Service implemented the Immigration and Reform Control Act of 1986 (IRCA). Under IRCA, employers are required to verify the employment eligibility of every individual whom they wish to employ. An employer is liable under IRCA for knowingly hiring a worker unauthorized to work in the United States or for continuing to employ such a person after learning that he or she is not so authorized.

The eligibility of non-U.S. citizens to be employed or compensated in the United States is governed by the specific immigrant or nonimmigrant status of that individual. Certain foreign nationals, by virtue of their immigration status are authorized to work without restriction as to the location or type of employment. Such individuals are entitled to hold any job or position, with any employer, for the length of time authorized by their employment document, and to receive compensation for services under the same laws as U.S. citizens.

One such individual is the holder of an immigrant visa, a Lawful Permanent Resident with an Alien Registration Receipt Card ("green card"). Holders of "green cards" are permitted to work in the United States without restriction for an indefinite period of time. As proof of authorization to be employed, they need only present a valid green card (Form I-551, Resident Alien Card (or, if the green card has not yet been issued, an I-551 stamp in their passport). The latest resident alien cards bear an expiration date. However, the employer is not required to reverify the employment authorization of a permanent resident who presents Form I-551 as evidence of employment eligibility even if the I-551 contains an expiration date.

Certain other categories of individuals may be granted an unrestricted right to work in the United States. In general, these individuals are issued Conditional Temporary Resident Alien Cards, Lawful Temporary Alien Cards, or Employment Authorization Documents (EAD). These documents contain an expiration date. The holder of one of these types of documents is entitled to be employed only until the date of expiration specified on the document. An employer must reverify employment eligibility on or before the expiration date to continue to employ the foreign national.

Each year, several million foreign nationals are granted permission to enter the United States to visit, reside, study, or work for a temporary period. Such individuals are admitted in one of many nonimmigrant visa classifications. Depending upon the type of nonimmigrant visa classification granted, a foreign national may or may not be permitted to work or receive compensation while in the United States. In other cases, an individual may be permitted to work but will be limited to employment in a specific position with an identified employer for a specified period of time.

This information is intended as a useful reference when making an initial determination as to whether a foreign national is eligible to be employed by your department. Unit business managers are cautioned to consult with legal counsel before making a final determination of employment eligibility in order to avoid a charge of unfair immigration-related employment practices. In most cases, the University's International Student Center will be able to provide additional guidance.

 

GENERAL INFORMATION

A foreign national's ability to be employed or compensated for services in the U.S. depends on his or her nonimmigrant status and on the regulations that govern his or her visa.

Many visa categories allow a person to be employed or compensated by a U.S. employer. In almost every case, however, employment and compensation are restricted to a specific, sponsoring employer or organization for a fixed period of time and for a specific activity.

This information outlines the numerous nonimmigrant visa categories and the restrictions that limit the visa holder's ability to be employed, receive compensation, or study in the United States.

PLEASE NOTE: This information is to be used only as a guide. For definitive information regarding compensation, employment, and enrollment, please contact the University's office of international student and scholar services.

 

APPLICABLE DEFINITIONS:

 

1. DESIGNATED PROGRAM SPONSOR

Organizations wishing to administer (or sponsor) an exchange visitor (J visa) program must apply to the U.S. Information Agency for "designation." The institution at which an exchange visitor studies may or may not be the exchange visitor's "designated program sponsor."

 

2. DSO - DESIGNATED SCHOOL OFFICIAL

A "designated school official" is a school employee answerable to the INS for the administration of the school's F or M foreign-student program.

 

3. EAD - EMPLOYMENT AUTHORIZATION DOCUMENT

An "employment authorization document" (Form I-688B) authorizes the bearer to work in the United States. It is not evidence of citizenship or permanent residence.

 

4. RO - RESPONSIBLE OFFICER

A "responsible officer" is an individual answerable to the U.S. Information Agency for the administration of a designated exchange visitor program (J visas). May or may not be an employee of the institution at which the exchange visitor studies.

 

5. FORM I-797A, NOTICE OF ACTION

Is issued by INS to signify approval of an employer's petition for employment authorization. The employee's I-94, Departure Record, notated with employment authorization, will be returned to the petitioner with the I-797A.

 

FOREIGN NATIONALS WHO MAY WORK AND STUDY
IN THE U.S. WITHOUT RESTRICTION

Certain foreign nationals, by virtue of their status are authorized to work in the United States with no restrictions as to the location or type of employment. Although individuals have an unrestricted right to work, some must apply to the U.S. Immigration and Naturalization Service (IND) for an Employment Authorization Document (EAD).

 

1. LAWFUL PERMANENT RESIDENT

Individuals who have permission to reside in the U.S. on a permanent basis (i.e., holders of "green card").

Documentation: Form I-551, Resident Alien card (or I-551 stamp in passport). The card must be reissued every 10 years; however, the individual's status does not expire.

 

2. CONDITIONAL PERMANENT RESIDENT

Individuals who have been granted conditional permanent residency on the U.S. In most cases, conditional residency is granted for a period of 2 years. At the end of this period, the individuals is required to petition INS for removal of the conditional status. If approved, the individual is converted to lawful permanent residency.

Documentation: Form I-551, Conditional Temporary Resident Alien card. Employers must reverify employment eligibility after the expiration date on the card.

 

3. LAWFUL TEMPORARY RESIDENT

Individuals who have been granted temporary permission to resident in the U.S. under certain special U.S. government programs.

Documentation: Form I-688, Temporary Resident card, or I-688A, Employment Authorization for Legalization Applicant; valid until expiration date on the card (or on a sticker on the back of the card). Employers must reverify employment eligibility when the document expires.

 

4. REFUGEE

Individuals admitted to the U.S. who have proven a well-founded fear of persecution in their home country. Admitted to the U.S. for 1 year, after which time they can apply to become a lawful permanent resident.

Documentation: EAD issued by INS, an admissions stamp in a passport, a United Nations refugee travel document, a U.S. refugee travel document, or an I-94 card annotated with refugee status and containing an employment authorization endorsement. Employers must reverify employment eligibility after the expiration date on the document.

 

5. ASYLEE

Individuals who have been granted asylum status after arrival in the U.S. based on a well-founded fear of persecution in their home country.

Documentation: Must obtain an EAD, with an expiration date, from the INS. Employers must reverify employment eligibility when the EAD expires. May also present a U.S. refugee travel document).

 

6. FIANCÉ OR FIANCÉE

Individuals who are fiancés or fiancées of U.S. citizens and their children under age 21 admitted to the U.S. as K-1 or K-2 nonimmigrants.

Documentation: Must obtain an EAD from INS. EADs are issued for a 90-day period following admission. If the marriage does not take place, the K status (and the resulting employment authorization) is terminated. If the marriage does take place, the individual is eligible to apply for and be granted conditional resident status. Employers must reverify employment eligibility when the EAD card expires.

 

7. PARENTS AND DEPENDENT CHILDREN OF THOSE FORMERLY

EMPLOYED BY CERTAIN INTERNATIONAL ORGANIZATIONS

Individuals who are holders of N-8 or N-9 visas. Eligible to apply for permanent residency.

Documentation: Must obtain an EAD from INS. Employers must reverify employment eligibility when the EAD expires.

 

8. CITIZENS OF THE FEDERATED STATES OF MICRONESIA AND THE MARSHALL ISLANDS

Citizens of the Federated States of Micronesia and the Marshall Islands may enter the U.S. and reside and be employed here permanently.

Documentation: Must obtain an EAD from INS.

 

9. INDIVIDUALS GRANTED WITHHOLDING OF DEPORTATION PROCEDURES

Individuals who can establish fear of persecution and who are in deportation or exclusion hearings may have deportation withheld while the danger persists.

Documentation: Must obtain an EAD from INS. Employers must reverify employment eligibility when the EAD expires.

 

10. THOSE GRANTED EXTENDED VOLUNTARY DEPARTURE

Certain individuals granted permission to remain in the U.S. under an administrative order.

Documentation: Must obtain an EAD from INS. Employers must reverify employment eligibility when the EAD expires.

 

11. THOSE GRANTED TEMPORARY PROTECTED STATUS (TPS)

Special protection from deportation is available to qualified nationals of designated countries. Extended by U.S. government, generally in 1-year periods.

Documentation: Must obtain an EAD from INS. Employers must reverify employment eligibility when the EAD expires.

 

12. THOSE GRANTED VOLUNTARY DEPARTURE UNDER THE FAMILY UNITY PROGRAM

Individuals who are given permission for voluntary departure by special INS rulings.

Documentation: Must obtain an EAD from INS. Employers must reverify employment eligibility when the EAD expires.

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