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DISCLAIMER NOTICE - The Immigrant Legal Advocacy Project is providing this information as a public service. We try to make it accurate as of the date on this page. Immigration laws and regulations change frequently. We cannot guarantee or promise that this information is always up-to-date and correct.
This information is not legal advice. We do not intend this information to be advertising or solicitation. By providing this general information, we are not acting as your lawyer. Always consult a competent lawyer or immigration advocate accredited by the Board of Immigration Appeals before taking any legal action.
This page last updated 7/1/2004.
WHO CAN WORK LEGALLY IN THE U.S.?
US citizens, permanent residents, refugees and political asylees,
persons with visas issued specifically so that they can work with
a particular employer, and persons issued an "employment authorization
document" (EAD) by the US Citizenship and Immigration Services (USCIS,
formerly INS) are allowed to work in the US. Persons who are undocumented,
or who have nonimmigrant visas that don't allow employment cannot
work legally in the US.
WHO CAN GET AN EAD?
Click here to learn about who is eligible for
Immigration work authorization. |
HOW LONG CAN A PERSON WORK WITH AN EAD?
Currently, most EAD's last no longer than a year (with some exceptions).
A person given an EAD because s/he has filed an application with
Immigration and is allowed to work legally until getting a decision
on that application can have Immigration renew the EAD annually
for as long as the application is pending, including review in the
Immigration Court and some appeals. Persons with Temporary Protected
Status will be able to extend their EAD's for as long as TPS
for their country lasts. Most persons in removal proceedings
who are eligible to apply for residency in those proceedings usually
can renew their EADs for as long as it takes to get a final decision
on their applications, including any appeals to the Board of Immigration
Appeals.
Many Immigration offices have long backlogs for renewing EADS. A
noncitizen with an EAD should plan to file to renew her/his EAD
three months before her/his current EAD expires.
WHAT CAN A PERSON SHOW AN EMPLOYER TO PROVE THAT S/HE CAN LEGALLY WORK?
There are several documents that a person may show an employer to prove that s/he is allowed to work legally in the US. An employer must see documentation that proves the identity of the person, and the person's ability to work. The employer cannot specify any particular document. The employee has the choice of showing any of the documents allowed under the law.
The documents that a person will show will depend on that person's
legal status. Examples of the documents a person can show are:
- A US Citizen by birth can show: her/his birth certificate
plus an ID document such as a state driver's license; or her/his
US passport (that proves both citizenship and identity); or
an unrestricted Social Security card and an ID document, such
as a state driver's license.
- A permanent resident can show: her/his permanent resident
card ("green card') (including temporary evidence of permanent
residency, such as Immigration stamp to that effect in his/her passport);
or an unrestricted Social Security card and an ID document,
such as a state driver's license.
- Refugees and asylees can show their white 'I-94 card' alone
that shows their admission as refugees or asylees and their
photo; or can show an INS employment authorization document
(EAD)
; or an unrestricted Social Security card and an ID document,
such as a state driver's license.
- A person who has an Immigration-issued work permit (EAD) can
show: her/his EAD; or her/his Social Security card (which usually
says that it is valid for work only with INS work authorization),
and her/his EAD or other ID document, such as a state driver's
license, if s/he has an unrestricted Social Security card.
There are other acceptable documents that a person can show
that are not included in these examples.
For a copy of Immigration's
list of acceptable documents, go to www.uscisj.gov.
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WHAT ARE AN EMPLOYER'S OBLIGATIONS UNDER THE EMPLOYER SANCTION
LAWS?
This is a very complex area of the law and employers who do not
understand their obligations should ask Immigration for a copy of
Immigration's employer sanctions handbook (information is also available
at Immigration's website at www.uscis.gov), and may also want to
consult an experienced immigration attorney. This discussion will
just point out some of the most important points under the law.
- All employers are required to verify employment authorization for any employees hired after November 7, 1986, by using Immigration's Form 1-9.
- An employer CANNOT ask during a job interview what the job applicant's employment status is. This could constitute illegal discrimination. Instead, the employer can only notify the job applicant that should the job be offered to her/him, s/he will be expected to provide evidence that s/he he is legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate. Saying this selectively may be illegal discrimination.
- The employer must make sure that any new employee fills out the 1-9 within the first 3 days of employment. (if the job will last only 3 days or less, the 1-9 must be filled out on the first day). An employee who is actually a temporary employee sent by a temp agency need not fill out the 1-9 form. The temp agency is expected to have an 1-9 on file for that person.
- The employer CANNOT specify which documents a new employee must show to prove that s/he is legally entitled to work in the US, in connection with filling out INS form 1-9. As long as the employee presents one document alone, or two documents in combination that are on Immigration's list of acceptable documents to prove work authorization and identity, the employer will be in compliance with the law. An employer must accept a filing receipt for a replacement EAD if the employee's current EAD was lost, stolen, or destroyed. In that case, the employee must also present another document to prove his identity. The filing receipt (it will say that it is a receipt for INS form 1-765) is valid for 1-9 purposes for 90 days after its issuance, before which time Immigration will hopefully have issued the new EAD.
- If the employee has an Immigration work permit (EAD), the
employer must reverify the employee's continued eligibility
to work by the time that EAD expires. With some exceptions,
notably refugees and asylees whose legal status entitles them
to work even if they have an expired EAD, an employer cannot
allow a person with an expired EAD to work until s/he gets a
new, valid, EAD. Employers would be wise to remind the employee
three months in advance of the EAD's expiration date to file
to renew the EAD, because of lengthy Immigration backlogs in
issuing renewed EADs. Immigration has acknowledged this backlog
problem, at least for persons whose EADs are based on pending
asylum applications (bearing the code C-8). If Immigration issues
the EAD after the prior card has already expired, it backdates
the new card to the prior card's expiration date, as long as
the renewal application was filed before the earlier card expired.
This policy protects both the employee and the employer if there
is an inadvertent gap between the expiration of the old card
and issuance of the renewed EAD.
- Employers do NOT need to repeat the I-9 employment authorization verification process for an employee who goes on temporary leave (family leave, disability, sabbatical etc. - any temporary leave approved by the employer) or who is laid-off on on-strike temporarily. An employee who is terminated or who voluntarily quits and is later rehired must repeat the I-9 process.
- Employers must keep the 1-9 on file for 3 years after the date of hire, or 1 year after the employee no longer works for the employer, whichever is later. Rules for temporary employment agencies are slightly different.
For more information, employers should consult with experienced
immigration attorneys who specialize in employer sanctions compliance.
For a partial listing of immigration lawyers, click here.
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