Each year, the United States admits thousands of foreign nationals to work in various industries around the country. Many of these foreign nationals work in specialized positions and are critical to the success of many U.S. companies. All foreign workers, however, must obtain permission to work legally in the U.S. This post describes whom may be eligible to receive an Employment Authorization Document (“EAD”) to work in the U.S., and whether an EAD is required for the type of work a foreign national will conduct while in the country.
Who Can and Cannot Get an EAD?
A foreign national may qualify for an EAD if he/she is eligible for and maintains a qualifying status or category under the law. Some examples of qualifying categories include:
Temporary (Nonimmigrant) Workers
A temporary worker is an individual seeking to enter the US temporarily for a specific purpose. Examples of nonimmigrant visas include the H, E, CW-1, L, O, P, Q, R-1 and TN visas. Please note nonimmigrants who enter the US for a specific period of time are restricted to the activity or purpose for which their nonimmigrant visa was issued. For example, an E-2 investor can only work for the E-2 enterprise. While an H-1B visa holder need not apply for an EAD, H-1B visa permits the beneficiary to only work for the petitioner company. While the primary applicant may be restricted in his/her employment, in some cases a spouse can apply for an EAD without restriction. For example, an E-2 or L-1 spouse can apply for an EAD and work anywhere, including starting their own business. An H-1B, TN or O-1 spouse though is not eligible for work authorization.
Temporary Visitors for Business
For certain short-term business ventures, a foreign worker may obtain a B-1 visa as the temporary visitor for business. The B-1 visa is intended only for business activities that are a “necessary incident” to your business abroad. This covers a wide range of activities such as attending meetings, consulting with associates, engaging in negotiations, taking orders for goods produced and located outside the United States, attending conferences, and researching options for opening a business in the United States (such as locating or entering into a lease for office space).
Work-related activities that fall under this category are permitted, but the foreign worker does not have the ability to apply for or obtain an EAD.
Students and Exchange Visitors
Students and exchange visitors may, under certain circumstances, be allowed to work in the United States by obtaining work authorization under Curricular Practical Training (CPT) and Optional Practical Training (OPT). CPT allows the student to work during the school year but is highly restricted. OPT permits students who complete certain programs under F-1 status to work for a year (in some cases more) with an employer as long as the job relates to their academic program.
Asylee/Refugee, their Spouses, and their Children
Certain foreign nationals may demonstrate eligibility to work in the United States because of their immigration status. In this case, an asylee or refugee, or their spouses and their children (under certain circumstances) are eligible to receive an EAD and work in the United States. Applicants with pending I-589 applications may also be eligible for an EAD.
Green Card Applicants
When someone is in the U.S. and applies for a green card, they will file either an I-130 (family based petition), I-140 (employment petition) or I-526 (EB-5 investor petition). They will also file (either at the same time or later) an I-485 petition which is a petition that adjusts your status from the non-immigrant category you are in (eg. H-1B) to a green card. Generally speaking, once an I-485 petition has been filed, an EAD application can also be filed and the applicant can be granted work authorization while the I-485 is being adjudicated.
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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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