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Can a Spouse Work While Waiting for a Marriage Green Card in the U.S.?

Securing work authorization for the spouse of a U.S. citizen or lawful permanent resident (LPR) while awaiting a marriage-based green card can be a crucial step toward building a stable and fulfilling life in the United States. This process not only involves understanding the legalities but also recognizing the importance of the Employment Authorization Document (EAD) during the green card application process.

A work permit, officially known as the Employment Authorization Document (EAD), becomes essential for many immigrant spouses. It enables them to legally work while their green card application is being processed. This document is more than just a piece of paper; it represents financial independence, career continuity, and a smoother transition into life in the U.S.

By obtaining an EAD, spouses can contribute to their household, pursue professional opportunities, and integrate more seamlessly into American society. In this blog, we’ll explore the steps to secure work authorization and highlight why an EAD is a vital component of the green card journey.

Eligibility for Employment Authorization (EAD)

An Employment Authorization Document (EAD) is essential for non-citizens in the United States who wish to work legally. To be eligible for an EAD, certain criteria must be met, based on your immigration status or circumstances. Here’s an overview of the eligibility requirements and the process to obtain an EAD.

Who Can Apply for an EAD?

You can apply for an EAD if you fall into one of the following categories:

  1. Pending Adjustment of Status:
    • You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status.
  2. Pending Asylum or Refugee Status:
    • You have a pending Form I-589, Application for Asylum and for Withholding of Removal, and it has been pending for at least 150 days.
  3. Paroled into the U.S.:
    • You were recently paroled into the United States and your parole remains valid.
  4. Certain Nonimmigrant Statuses:
    • You hold a nonimmigrant status that allows you to stay in the U.S. but requires you to seek employment authorization, such as F-1 or M-1 students, J-2 spouses of exchange visitors, and others.

How to Apply for an EAD

To apply for an EAD, you must file Form I-765, Application for Employment Authorization, with the U.S. Citizenship and Immigration Services (USCIS). The application process includes:

  1. Complete Form I-765: Fill out the form accurately, specifying your eligibility category.
  2. Submit Required Documents: Include necessary supporting documents, such as copies of your I-94, passport, or other proof of status.
  3. Pay the Filing Fee: There is a filing fee for Form I-765, although certain categories may qualify for a fee waiver.
  4. Biometrics Appointment: You may be required to attend a biometrics appointment for fingerprinting and photographing.
  5. Mail the Application: Send the completed form and documents to the correct USCIS address based on your eligibility category.

Eligibility Requirements Based on Marital Partner’s Status (U.S. Citizen or LPR)

  • Spouse of a U.S. Citizen:
    • The spouse can apply for an EAD concurrently with the green card application (Form I-485). This is often done through concurrent filing of Form I-130 (Petition for Alien Relative) and Form I-485 (Application to Register Permanent Residence or Adjust Status).
    • Once Form I-485 is filed, the spouse is eligible to apply for an EAD by submitting Form I-765​ (USCIS)​.
  • Spouse of a Lawful Permanent Resident (LPR):
    • The process is similar, but the timing can differ due to visa availability and priority dates. The spouse can file Form I-765 after Form I-485 is submitted, provided that the visa bulletin shows the priority date is current.
    • If the priority date is not current, the spouse must wait until it becomes current before filing Form I-485 and subsequently Form I-765​ (USCIS)​​ (USCIS)​.

Renewal and Replacement

  • Renewal: If you need to renew your EAD, you should file a new Form I-765 at least 180 days before your current EAD expires to avoid a gap in employment authorization.
  • Replacement: If your EAD is lost, stolen, or contains incorrect information, you can apply for a replacement by filing a new Form I-765 with the appropriate fee.

Application Process for Employment Authorization Document (EAD)

Applying for an Employment Authorization Document (EAD) allows eligible non-citizens to legally work in the United States. Here’s a step-by-step guide to help you understand the application process.

Step 1: Determine Your Eligibility

Before applying, ensure you meet the eligibility criteria for an EAD. Common eligibility categories include:

  • Pending Form I-485 (Application to Register Permanent Residence or Adjust Status)
  • Pending Form I-589 (Application for Asylum and for Withholding of Removal)
  • Paroled into the U.S. for urgent humanitarian reasons
  • Certain nonimmigrant statuses such as F-1 or J-2 students

You can find a comprehensive list of eligibility categories on the USCIS website​ (USCIS)​.

Step 2: Complete Form I-765

Form I-765, Application for Employment Authorization, is the primary form used to request an EAD. Here’s how to complete it:

  • Download the Form: Get the latest version from the USCIS website​ (USCIS)​.
  • Fill Out the Form: Provide accurate personal information, including your name, address, and eligibility category. Follow the instructions provided in the Form I-765 Instructions​ (USCIS)​.

Step 3: Gather Supporting Documents

You need to submit various documents along with Form I-765, including:

  • Proof of Eligibility: Documents like a copy of your Form I-94, passport, or other proof of your immigration status.
  • Photos: Two passport-style photos taken within the last 30 days.
  • Previous EADs: If you are renewing or replacing an EAD, include a copy of your current or most recent EAD.

Refer to the detailed document checklist in the Form I-765 Instructions​ (USCIS)​.

Step 4: Pay the Filing Fee

Most applicants must pay a filing fee when submitting Form I-765. However, certain categories may qualify for a fee waiver. Here are the key points about paying the filing fee for Form I-765, Application for Employment Authorization, based on the updated USCIS fee schedule effective April 1, 2024: 

  1. Most applicants must pay a filing fee when submitting Form I-765. The fee varies depending on the eligibility category.
  • For F-1 Optional Practical Training (OPT) and F-1 STEM OPT Extension, the fees are: Online filing: $470
  • Paper filing: $520

 

  1. Certain categories may qualify for a fee waiver. Check the USCIS Fee Schedule to determine if you are eligible for a fee waiver.

 

  1. You can pay the fee with a money order, personal check, cashier’s check, or by credit card or debit card using Form G-1450, Authorization for Credit Card Transactions.

 

  1. If you pay by check, make it payable to the U.S. Department of Homeland Security.

 

  1. When submitting multiple forms, pay each filing fee separately. Combining payments for multiple forms may result in your entire package being rejected.

 

  1. Filing fees are final and non-refundable, regardless of the outcome of your application or if you withdraw your request.

Step 5: Submit Your Application

Once your form and documents are ready, submit your application package to the appropriate USCIS address. The address varies based on your eligibility category and location. Use the Direct Filing Addresses for Form I-765 to find the correct mailing address.

Step 6: Attend Biometrics Appointment (if required)

You may be required to attend a biometrics appointment where USCIS will collect your fingerprints, photograph, and signature. If this is necessary, USCIS will send you an appointment notice with the date, time, and location.

Step 7: Track Your Application Status

After submitting your application, you can track its status online using the USCIS Case Status Online tool. You will need your receipt number, which is provided in the receipt notice USCIS sends after receiving your application​ (USCIS)​.

Step 8: Receive Your EAD

If your application is approved, USCIS will mail your EAD card to the address you provided. The card typically arrives within two weeks after approval. Use the USPS tracking number provided by USCIS to monitor delivery​ (USCIS)​​ (USCIS)​.

By following these steps, eligible non-citizens can obtain an EAD, allowing them to work legally in the U.S. during their stay. For more detailed information, visit the USCIS EAD page​ (USCIS)​​ (USCIS)​​ (USCIS)​.

Adjusting Status and Consular Processing

Understanding the differences in the application process for spouses of U.S. citizens or lawful permanent residents (LPRs) who are inside versus outside the United States is crucial for a smooth immigration journey. Here, we’ll explain the two main pathways: Adjusting Status and Consular Processing.

Adjusting Status (Inside the U.S.)

  • Eligibility: This process is for spouses already in the U.S. who entered legally and are eligible to apply for a green card without leaving the country.
  • Process:
    1. File Form I-130: Petition for Alien Relative, filed by the U.S. citizen or LPR spouse.
    2. File Form I-485: Application to Register Permanent Residence or Adjust Status, usually filed concurrently with Form I-130 for immediate relatives of U.S. citizens.
    3. Employment Authorization: The spouse can apply for an Employment Authorization Document (EAD) using Form I-765.
    4. Advance Parole: They can also apply for a travel permit (Form I-131) to travel abroad while the adjustment application is pending.
    5. Biometrics Appointment: The spouse will be scheduled for a biometrics appointment for fingerprinting and photographing.
    6. Interview: Both spouses may be required to attend an interview at a USCIS office.
    7. Green Card Approval: If approved, the spouse receives their green card.

Consular Processing (Outside the U.S.)

  • Eligibility: This process is for spouses residing outside the U.S. who need to obtain an immigrant visa to enter the country as a permanent resident.
  • Process:
    1. File Form I-130: Petition for Alien Relative, filed by the U.S. citizen or LPR spouse.
    2. Approval and Transfer: Once Form I-130 is approved, the case is transferred to the National Visa Center (NVC).
    3. Submit Required Documents: The NVC will request the necessary documents and fees.
    4. Consular Interview: The spouse will attend an interview at a U.S. embassy or consulate in their home country.
    5. Medical Examination: A medical examination is required by a designated physician.
    6. Immigrant Visa Issuance: If the interview is successful, the spouse will receive an immigrant visa to travel to the U.S.
    7. Entry to the U.S.: Upon entering the U.S., the spouse will be processed by a Customs and Border Protection (CBP) officer and will receive a green card by mail.

Considerations for Applicants Applying for an EAD Outside the Usual Process

  1. Asylum Seekers and Refugees:
    • Eligibility: Individuals with pending Form I-589 (Application for Asylum) can apply for an EAD if the application has been pending for at least 150 days.
    • Documentation: Additional documents, such as a copy of the receipt notice for Form I-589, are required.
  2. Paroled Individuals:
    • Eligibility: Those paroled into the U.S. for urgent humanitarian reasons may apply for an EAD.
    • Documentation: Proof of parole status and duration.
  3. Certain Nonimmigrant Statuses:
    • Eligibility: F-1 students seeking Optional Practical Training (OPT), J-2 spouses of exchange visitors, and other specific nonimmigrant statuses.
    • Documentation: Relevant forms (such as Form I-20 for F-1 students) and supporting documents.
  4. Special Considerations:
    • Concurrent Filing: In some cases, Form I-765 can be filed concurrently with other forms, such as Form I-485 or Form I-539 (Application to Extend/Change Nonimmigrant Status).
    • Fee Waivers: Some applicants may qualify for a fee waiver based on financial hardship. Form I-912, Request for Fee Waiver, must be submitted with supporting evidence.

For comprehensive details and specific scenarios, refer to the USCIS website​ (USCIS)​​ (USCIS)​​ (US)

Employment Conditions with an EAD

An Employment Authorization Document (EAD) allows eligible non-citizens to work legally in the United States. Here are the key employment conditions and considerations for individuals holding an EAD:

  1. Legal Authorization to Work

An EAD provides the legal right to work in the U.S. for a specific period, typically one to two years, depending on the category under which it was issued. It serves as proof of work authorization for employers.

  1. Employer Obligations

Employers must verify the work authorization of all employees, including those with an EAD, using Form I-9, Employment Eligibility Verification. An EAD holder must present their valid EAD as part of this verification process.

  1. Types of Employment

EAD holders can work for any employer in the U.S. and are not restricted to a specific job or employer. This is different from certain nonimmigrant visas (like H-1B or L-1), which are tied to specific employers.

  1. Renewal and Maintenance

EAD holders must apply for renewal before their current EAD expires to maintain continuous employment authorization. It is recommended to file for renewal at least 180 days before the expiration date to avoid any gaps in employment eligibility.

  1. Employment Restrictions

While the EAD allows broad employment opportunities, there are some restrictions:

  • Duration: The EAD is valid only for the period specified on the card. Working beyond this period without renewal is unauthorized.
  • Status Dependent: The validity of the EAD is often tied to the underlying immigration status. If the immigration status changes or is terminated, the EAD may also become invalid.
  1. Reporting Changes

EAD holders must report any changes in address to USCIS to ensure they receive important notifications and documents related to their employment authorization.

  1. Multiple Employers and Self-Employment

EAD holders can work for multiple employers simultaneously or be self-employed. This flexibility is advantageous for those seeking multiple job opportunities or starting their own business.

  1. Taxes and Social Security

EAD holders are subject to the same tax obligations as U.S. citizens and lawful permanent residents. They must obtain a Social Security Number (SSN) to work legally and pay taxes. They are also eligible for Social Security benefits if they meet the required conditions.

Consequences of Working Without Authorization

Working without authorization in the United States carries significant risks and penalties. It can also have severe repercussions on future immigration applications. Here’s what you need to know:

Risks and Penalties Associated with Unauthorized Employment in the U.S.

Legal Penalties:

  • Deportation and Removal: Unauthorized employment can lead to deportation proceedings. Non-citizens found working without authorization may be placed in removal proceedings, resulting in potential deportation from the U.S.
  • Inadmissibility: Individuals who have worked without authorization may be deemed inadmissible, affecting their ability to re-enter the U.S. or adjust their status in the future.

Financial Penalties:

  • Fines: Employers who knowingly hire unauthorized workers can face substantial fines. These penalties can range from hundreds to thousands of dollars per unauthorized worker, depending on the severity and frequency of the violations.
  • Back Taxes: Unauthorized workers may be required to pay back taxes for the income earned during unauthorized employment.

Criminal Charges:

  • Fraud and Misrepresentation: Providing false information, such as using a fake Social Security Number or presenting fraudulent documents, can result in criminal charges. This includes charges of fraud and identity theft, which carry severe legal consequences.

Impact of Unauthorized Work on Future Immigration Applications

Adjustment of Status:

  • Ineligibility: Unauthorized employment can make an individual ineligible to adjust status to that of a lawful permanent resident (green card holder). Certain exceptions may apply, such as immediate relatives of U.S. citizens, but this is not guaranteed.
  • Waivers: In some cases, individuals may apply for a waiver of inadmissibility due to unauthorized employment. However, obtaining a waiver can be complex and is not always granted.

Visa Applications:

  • Non-Immigrant Visas: Unauthorized work can negatively impact applications for non-immigrant visas, as applicants must demonstrate their intent to comply with U.S. immigration laws. Past violations can cast doubt on their credibility and intentions.
  • Immigrant Visas: Those who have worked without authorization may face challenges when applying for immigrant visas. Consular officers will consider unauthorized employment when determining eligibility and admissibility.

Future Employment Authorization:

  • Difficulty Obtaining EAD: Individuals with a history of unauthorized work may face difficulties obtaining future Employment Authorization Documents (EADs). USCIS may scrutinize applications more closely, leading to potential delays or denials.

Legal Advice:

  • Consulting an Immigration Attorney: Given the serious consequences of unauthorized employment, it is crucial to seek legal advice from an experienced immigration attorney. They can provide guidance on potential remedies and the best course of action based on individual circumstances.

Travel Considerations

Using Form I-131 (Application for Travel Document) for Lawful Re-Entry During the Application Process

Form I-131, Application for Travel Document, is used to request various travel documents, including Advance Parole, which allows certain individuals to re-enter the U.S. after traveling abroad. Here’s how it applies to those in the marriage-based green card process:

Advance Parole:

  • Purpose: Advance Parole allows individuals with pending Form I-485 (Application to Register Permanent Residence or Adjust Status) to re-enter the U.S. without abandoning their application.
  • Eligibility: Applicants for adjustment of status, including those applying for a marriage-based green card, can apply for Advance Parole.
  • Application Process:
    1. Complete Form I-131: Download and fill out Form I-131 from the USCIS website.
    2. Submit Required Documents: Include a copy of your I-485 receipt notice, photographs, and any other required documents.
    3. Filing Fee: Pay the required fee, unless you qualify for a fee waiver.
    4. Mail the Application: Send the completed application to the appropriate USCIS address as specified in the Form I-131 instructions.

Processing Time:

  • Processing Duration: It typically takes several months to process an Advance Parole document, so it is important to apply well in advance of any planned travel.
  • Travel Restrictions: Do not leave the U.S. until you have received your Advance Parole document, as doing so can result in the abandonment of your adjustment of status application.

Risks of Leaving the U.S. After Applying for a Marriage-Based Green Card and Work Permit

Leaving the U.S. after applying for a marriage-based green card and work permit (EAD) carries significant risks. Here are the key considerations:

Abandonment of Application:

  • Automatic Abandonment: If you leave the U.S. without obtaining Advance Parole, USCIS will consider your adjustment of status application abandoned, and it will be denied. You would need to reapply, which involves additional costs and time.
  • Exceptions: Certain nonimmigrant statuses, such as H-1B or L-1 visa holders, might have specific exceptions, but it’s crucial to confirm individual circumstances with USCIS or an immigration attorney.

Travel Delays:

  • Re-Entry Issues: Even with Advance Parole, there is no guarantee of re-entry. U.S. Customs and Border Protection (CBP) officers have the authority to deny entry based on various factors.
  • Administrative Processing: Re-entry can be delayed due to additional administrative processing, which can disrupt travel plans and employment.

Impact on Green Card Process:

  • Delays: Traveling abroad can delay the processing of your green card application. Any scheduled interviews or biometric appointments missed due to travel will need to be rescheduled, leading to further delays.
  • Documentation Issues: Ensure you carry all necessary documents, including your Advance Parole document, passport, and evidence of your pending green card application, to avoid complications at the port of entry.

Legal Advice: Before making any travel plans, consult with an immigration attorney to understand the specific risks and ensure compliance with all immigration regulations.

Conclusion 

Spouses of U.S. citizens or lawful permanent residents (LPRs) can legally work in the U.S. while waiting for their marriage-based green card by obtaining an Employment Authorization Document (EAD). To apply, they must file Form I-765, along with the necessary documentation, and can work for any employer upon approval. This work permit ensures financial stability and smooth integration into American society during the green card application process. 

However, leaving the U.S. without Advance Parole during this period can jeopardize their application, so careful planning and consultation with an immigration attorney are crucial. For more details, visit the USCIS website.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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