The short answer to who is allowed to work in the United States is simple. You are allowed to work in the United States if you have legal permission to work in the United States. If you are not sure, this would be a good time to either continue reading this blog post or seek professional advice. Possible resources of information (to list a few) regarding your legality of work in the United States could include the Department of State, U.S. Citizenship, and Immigration Services (USCIS), and the Social Security Administration.
This blog post will lay the basis for understanding if you may legally work in the United States or not. Off the bat, American citizens, and green card holders (lawful permanent residents) may work in the United States for any employer, anywhere in the United States (in theory; subject to further scrutiny, and specific criteria required to be met by the employer).
Beyond these two groups, citizens, and green card holders, you must acquire a visa to enter the United States to begin with, and in some cases, additional permission to work on top of your visa. This is to say that not every visa automatically includes the legal right to work in the United States, even if common sense would lead a person to believe so.
For example, if you are the spouse or child of the main visa holder, meaning your visa bears the number 2 or 3 associated with it, you most likely would need to apply for work authorization in addition to the visa approved for you to accompany someone else. There is a chance it will not be approved.
A common way to work temporarily in the United States as a non-immigrant is for a prospective employer to file a petition with USCIS on your behalf. If you have the right combination of skills, education, and/or work experience, you may be able to live and work permanently in the United States by seeking an employment-based immigrant visa.
If you live outside the United States and want to work here, you generally must apply for a visa from the U.S. Department of State (DOS), unless a visa is not required for people from your country of nationality. In many cases, USCIS must approve your petition before you are eligible to apply to the U.S. Department of State (DOS) for a visa or seek admission at a port of entry.
Before entering the United States, you must present yourself to a U.S. Customs and Border Protection (CBP) officer and receive permission to enter the United States and engage in your proposed activity. If you are in the United States in a lawful non-immigrant status (visa) that does not provide employment authorization, you generally may apply for:
A change of status to a non-immigrant classification that provides employment authorization; or
An adjustment of status to become a lawful permanent resident (green card holder). This may be a concurrent filing with an immigrant visa petition or, depending on the circumstances, may require an applicant to obtain an approved immigrant visa before applying for an adjustment of status to become a lawful permanent resident (green card holder)
Depending on the classification you seek, your change or adjustment of status application might require a U.S. employer or other qualified requestor to file an application or petition on your behalf to establish your eligibility before USCIS approves your application. If you apply based on certain classifications (for example, an alien with extraordinary ability or as a non-immigrant E-1 or E-2 principal treaty trader or investor), you may be eligible to self-petition, which means filing an application on your own behalf.
Additionally, if you are in the United States, including if you are an applicant for permanent residence (green card holder) or a certain family member of an alien who has lawful non-immigrant status, you may file Form I-765, Application for Employment Authorization, to request employment authorization and an Employment Authorization Document (EAD).
You may also apply for an Employment Authorization Document (EAD) that shows such authorization if your immigration status authorizes you to work in the United States without restrictions. The conditions you must meet and how long you can work in the United States depend on the type of immigration status (visa) the Department of Homeland Security (DHS) grants.
You must comply with all conditions of your employment authorization and the terms of your admission to this country. If you violate any of the conditions, you could be removed (deported) from or denied re-entry into the United States.
Temporary (Non-immigrant) Workers:
Temporary (non-immigrant) workers are people that are allowed to enter the United States and stay for as long as their visa allows, they meet the visa’s requirements, and they are still working for the visa’s sponsor. For you to come to the United States lawfully as a non-immigrant to work temporarily, your prospective employer must generally file a non-immigrant petition on your behalf with USCIS.
Please note:
Spouses and children who qualify for dependent non-immigrant classification of a temporary worker and who are outside of the United States should apply directly at a U.S. consulate for a visa, unless exempt
Federal U.S. Tax Information - Non-citizens employed in the United States may have a U.S. state and federal tax obligation. Most likely your obligations to pay taxes (state and federal) will be the same as those of an American citizen
Social Security Number Information - Only non-citizens who have permission from the Department of Homeland Security to work can apply for a Social Security number
A few non-immigrant classifications allow you to work in this country without an employer having first filed a petition on your behalf. Such classifications include the non-immigrant E-1, E-2, E-3 and TN classifications, as well as, in certain instances, the F-1 and M-1 student and J-1 exchange visitor classifications.
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Certain E and L visa dependent spouses are considered employment authorized incident to status. As of Jan. 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new Change of Address (COA) codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9, Employment Eligibility Verification.
USCIS will send E and L spouses with a Form I-94 issued by USCIS before January 30, 2022 that was notated with E-1, E-2, E-3, E-3D, E-3R, or L-2 non-immigrant status and who are employment authorized incident to status a notice regarding the new COA codes that, together with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 non-immigrant status, serves as evidence of employment authorization under List C of Form I-9.
E and L visa spouses who are employment authorized incident to status are no longer required to request employment authorization by filing Form I-765, Application for Employment Authorization, with fee, but they may continue to file Form I-765 if they choose to receive an Employment Authorization Document (Form I-766 EAD).
Though the Immigration and Nationality Act (INA) does not provide a specific non-immigrant classification for dependents of Q-1 non-immigrants, this does not preclude the spouse or child of a Q-1 from entering the U.S. in another non-immigrant classification (visa).
Permanent Workers:
Approximately 140,000 immigrant visas are available each fiscal year for non-citizens (and their spouses and children) who seek to immigrate based on their job skills. If you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to live permanently in the United States. The five employment-based immigrant visa preferences (categories) are listed below.
Employment-Based Visas - USCIS is prioritizing efforts to ensure USCIS uses as many available employment-based visas as possible every fiscal year. USCIS urges anyone who may be eligible for an employment-based adjustment of status to file their adjustment of status application, accompanied by a valid Form I-693, Report of Medical Examination and Vaccination Record, as soon as possible.
Labor Certification - Some immigrant visa preferences require you to already have a job offer from a U.S. employer. This employer will be considered your sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). The DOL labor certification verifies the following:
There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage
Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers
Permanent Worker Visa Preference Categories:
First Preference EB-1 - This preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers. A labor certification is not required in this case.
Second Preference EB-2 - This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. A labor certification is required in this case unless the applicant can obtain a national interest waiver.
Third Preference EB-3 - This preference is reserved for professionals, skilled workers, and other workers. A labor certification is required in this case.
Fourth Preference EB-4 - This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, noncitizen minors who are wards of courts in the United States, and other classes of noncitizens. A labor certification is not required in this case.
Fifth Preference EB-5 - This preference is reserved for business investors who invest $1.8 million or $900,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers. A labor certification is not required in this case.
Students and Exchange Visitors:
If you wish to pursue full-time academic or vocational studies in the United States, you may be eligible for one of two non-immigrant student categories. The “F” category is for academic students and the “M” is for vocational students. If you wish to participate in an exchange program, you may be eligible for the “J” category visa for exchange visitors. The J visa program is for educational and cultural exchange programs.
F, M, and J visas are generally associated as follows:
F-1 - Academic students
F-2 - Spouses and children of F-1
F-3 - Canadian or Mexican national academic commuter students
M-1 - Vocational students
M-2 - Spouses and children of M-1
M-3 - Canadian or Mexican national vocational commuter students
J-1 - Exchange visitors
J-2 - Spouses and children of J-1
Non-citizens temporarily present in the United States as students, trainees, scholars, teachers, researchers, exchange visitors and cultural exchange visitors are subject to special rules with respect to the taxation of their income.
Students and Employment:
If you would like to study as a full-time student in the United States, you will generally need a student visa. There are two non-immigrant visa categories for persons wishing to study in the United States. These visas are commonly known as the F and M visas. You may enter in the F-1 or M-1 visa category provided you meet the following criteria:
You must be enrolled in an "academic" educational program, a language-training program, or a vocational program
Your school must be approved by the Student and Exchange Visitors Program, Immigration & Customs Enforcement
You must be enrolled as a full-time student at the institution
You must be proficient in English or be enrolled in courses leading to English proficiency
You must have sufficient funds available for self-support during the entire proposed course of study
You must maintain a residence abroad which you have no intention of giving up
F-1 Student Visa:
The F-1 Visa (Academic Student) allows you to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. You must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and your school must be authorized by the U.S. government to accept international students.
M-1 Student Visa:
The M-1 visa (Vocational Student) category includes students in vocational or other nonacademic programs, other than language training.
Employment:
F-1 students may not work off-campus during the first academic year but may accept on-campus employment subject to certain conditions and restrictions. After the first academic year, F-1 students may engage in three types of off-campus employment:
Curricular Practical Training (CPT)
Optional Practical Training (OPT) (pre-completion or post-completion)
Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT)
F-1 students may also be eligible to work off-campus on a case-by-case basis because of special situations such as severe economic hardship or special student relief. M-1 students may engage in practical training only after they have completed their studies.
For both F-1 and M-1 students any off-campus training employment must be related to their area of study and must be authorized prior to starting any work by the Designated School Official (the person authorized to maintain the Student and Exchange Visitor Information System (SEVIS)) and USCIS.
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In general, only non-citizens who have permission from the Department of Homeland Security to work can apply for a Social Security number.
Temporary Visitors for Business:
To visit the United States for business, you need to obtain a temporary visitor for business visa, unless you qualify for admission without a visa under the Visa Waiver Program.
B-1 Temporary Business Visitor - Temporary business visitor to conduct activities of a commercial or professional nature. For example, consult with business associates, negotiate a contract, or attend a business conference. You may be eligible for a B-1 visa if you will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to:
Consulting with business associates
Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
Settling an estate
Negotiating a contract
Participating in short-term training
Transiting through the United States: certain persons may transit the United States with a B-1 visa
Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa
Eligibility Criteria:
You must demonstrate the following in order to be eligible for a B-1 visa:
The purpose of your trip is to enter the United States for business of a legitimate nature
You plan to remain for a specific limited period of time
You have sufficient funds to cover the expenses of the trip and your stay in the United States
You have a residence outside the United States that you have no intention of abandoning, as well as other binding ties that will ensure your return abroad at the end of the visit
You are otherwise admissible to the United States
WB Temporary Business Visitor under the Visa Waiver Program - Temporary visitor for business admitted under the Visa Waiver Program. The Visa Waiver Program (VWP) enables nationals of 35 participating countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. Nationals of VWP countries must meet eligibility requirements to travel without a visa on the VWP.
VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) before travelling. Travelers are screened at the port of entry into the United States and are enrolled in the Department of Homeland Security’s US-VISIT program.
GB Temporary Visitor to Guam - Temporary visitor for business (limited to Guam). The Consolidated Natural Resources Act of 2008 (CNRA) extended most provisions of U.S. immigration law to the Commonwealth of the Northern Mariana Islands (the CNMI). The CNRA created a new Guam-CNMI Visa Waiver Program (VWP) which became effective in 2009, and replaced the previous Guam Visa Waiver Program.
A non-citizen may be admitted into Guam or the CNMI under the current Guam-CNMI Visa Waiver Program if the noncitizen:
Is a national of a country or geographic area listed in 8 CFR § 212.1(q)(2)
Can be classified as a visitor for business or pleasure
Is solely entering and staying on Guam or the CNMI for a period not to exceed 45 days
Is in possession of a round trip ticket that is non-refundable and non-transferable and bears a confirmed departure date not exceeding 45 days from the date of admission to Guam or the CNMI
Is in possession of a completed and signed Guam-CNMI Visa Waiver Information form (Form I-736, Guam Visa Waiver Program) (PDF)
Is in possession of a completed I-94, Arrival-Departure Record (CBP Form I-94)
Is in possession of a valid unexpired ICAO compliant, machine-readable passport issued by a country that meets the eligibility requirements of this section
Has not previously violated the terms of any prior admissions. Prior admissions include those under the Guam-CNMI Visa Waiver Program, the prior Guam Visa Waiver Program, the Visa Waiver Program as described in section 217(a) of the INA and admissions pursuant to any immigrant or non-immigrant visa
Waives any right to review or appeal an immigration officer's determination of admissibility at the port of entry into Guam or the CNMI
Waives any right to contest any action for deportation or removal, other than on the basis of: an application for withholding of removal under section 241(b)(3) of the INA; withholding or deferral of removal under the regulations implementing Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; or, an application for asylum if permitted under section 208 of the Act; and
If a resident of Taiwan, possess a Taiwan National Identity Card and a valid Taiwan passport with a valid re-entry permit
International Entrepreneur Rule:
Every three years, by regulation, the Consumer Price Index for All Urban Consumers will adjust the investment and revenue amounts automatically. USCIS will post the new amounts on USCIS’ website.
Under the International Entrepreneur Rule (IER), the Department of Homeland Security may use its parole (permission to enter the United States) authority to grant a period of authorized stay, on a case-by-case basis, to non-citizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.
Under this final rule, entrepreneurs granted entrance to the United States (parole) will be eligible to work only for their start-up business. The spouses and children of the non-citizen entrepreneur may also be eligible to enter the United States. While spouses may apply for work authorization once present in the United States as parolees, the children are not eligible to work. USCIS may grant IER parole or up to three entrepreneurs per start-up entity.
Entrepreneurs applying for parole under this rule must show that they:
Have a substantial ownership interest in a start-up entity created in the past five years in the United States that has substantial potential for rapid growth and job creation
Have a central and active role in the start-up entity such that they are well-positioned to substantially help with the growth and success of the business
Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
The startup entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments
The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to startup entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
They partially meet either or both the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation; and
Otherwise merit a favorable exercise of discretion
A spouse or child of an entrepreneur applying for parole under this rule must show that they:
Are independently eligible for parole based on significant public benefit or urgent humanitarian reasons; and
Merit a favorable exercise of discretion
No matter what the circumstances of your case are, make sure to obtain legal immigration advice and/or services from an immigration attorney, which can found according to U.S. state on www.usaimmigrationhub.com.
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