Whether a person is in immigration court proceedings or has a pending application with the U.S. Citizenship and Immigration Services (USCIS), the question about her eligibility work in the United States comes up all the time.
If you have a legal immigration status in the United States, authorization to work may be implied in your status. For example, a nonimmigrant worker’s visa (such as H-1B or L-1) carries a right to be employed in the United States, but such right is restricted to the employment with the company that petitioned for a foreign national. Similarly, if you are a permanent resident (that is have a “green card”), there is an implied right to accept employment in the United States.
The situation is very different if you are in removal proceedings, have no legal immigration status, or have an application filed with the USCIS or Immigration Court. In those cases, you may still be eligible to work in the United States while your proceedings are pending. For example, if you have filed an application for Cancellation of Removal in Immigration Court you may apply for employment authorization and keep renewing your work permit until your case is resolved. Similarly, if you are applying for a green card, you may be eligible to get an authorization to work while the government processes your application.
If you filed an application for asylum, your eligibility to work in the United States is based on the length of time the government takes to make a decision on your application. If an Asylum Office or Immigration Court is unable to schedule your interview or merits hearing within 180 days of the filing date, you may be eligible to receive an employment authorization. Your application for a work permit should be submitted not earlier than 150 days after the date of filing an asylum application. Further, your eligibility to receive work permit may be affected if the delay of your proceedings is caused by you rather than by the government, which, among other reasons, could be due to a change of address, filing a motion with a court, et cetera.
It is important to note that in removal proceedings, an asylum application can only be filed with a judge at a court hearing. Due to the increased volume of cases in the recent years, it is not uncommon for a first hearing not to be scheduled within one-year time period when a person can file an asylum application. It also creates a problem with applying for employment authorization because an asylum application is supposed to be pending for at least 180 days in order for the applicant to be eligible to receive work permit.
As a result of the settlement in the case of A.B.T., et al. v. USCIS, et al., that was reached in 2013, new procedures were implemented to allow an asylum seeker to “lodge” her application with the court clerk at any time prior to a Master Calendar Hearing. While the application would still not be considered as filed, it will be stamped by the clerk as “lodged not filed” starting the “asylum clock” (that is the 180-day period) for employment authorization eligibility.
There a numerous other grounds for applying for an employment authorization document, including grant of Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), or other forms of deferred action. It might also be available to individuals released from immigration detention under an order of supervision, family members of beneficiaries of certain nonimmigrant employment-based visas, students enrolled in optional professional training, to name just a few categories. Generally, a foreign national can only apply for employment authorization in the United States if she falls within one of the eligibility categories enumerated in the pertinent regulations.
Immigration law is one of the most complex areas of law in the United States and there are many different grounds and rules that may affect your eligibility. Always consult with an experienced immigration attorney if you think you may be eligible to apply for work permit in the United States based on your immigration status or proceedings.
DISCLAIMER: Attorney Advertising. The information presented in this article is for informational purposes only, is not intended as, and should not be construed as a legal advice. This information should not be relied upon without first seeking professional legal counsel.