The National Interest Waiver (NIW) petition is a highly popular pathway to obtaining a green card for professionals whose work benefits the United States. However, there is a common and critical misconception that an approved NIW (Form I-140) automatically grants you the right to work in the U.S. It does not. Understanding the distinct steps of the green card process is crucial for maintaining your legal status and avoiding unauthorized employment.
The Two-Step Green Card Process
Obtaining a green card involves two distinct stages, and work authorization rules are different for each.
Step 1: Approval of the NIW Petition (Form I-140)
The first step is filing Form I-140. An approved I-140 confirms that you have met the eligibility requirements for a green card under the NIW category. It essentially reserves your “place in line” for a visa number. However, the approval of the I-140 does not grant work authorization. It is strictly a classification of your eligibility, not a work permit.
Step 2: Filing the Green Card Application (Form I-485 or Immigrant Visa)
Once your priority date becomes “current” according to the Visa Bulletin, you can move to the second step.
- File Form I-485: If you are already in the U.S., you can apply to adjust your status to permanent resident.
- Apply for an Immigrant Visa: If you are outside the U.S., you can process your green card application through a U.S. consulate in your home country.
Work Authorization Before Step 2
If your NIW petition is approved, but you haven’t yet filed Form I-485 (perhaps because your priority date is not current), you cannot work in the U.S. based on the I-140 alone. To continue working legally, you must maintain a valid non-immigrant visa status independent of your NIW case. Common options include:
- H-1B Visa: For specialty occupations.
- O-1 Visa: For individuals with extraordinary ability.
- E-2 Visa: For treaty investors.
- L-1 Visa: For intracompany transferees.
Without an active non-immigrant visa, you must wait until you reach Step 2 of the green card process to apply for employment authorization.
Work Authorization During Step 2
Once your priority date is current and you file Form I-485 to adjust your status, you unlock a new benefit. At this stage, you are eligible to apply for an Employment Authorization Document (EAD) by filing Form I-765.
Benefits of the EAD
- Work Flexibility: The EAD is an “open market” work permit, allowing you to work for any employer in the U.S. (or be self-employed) while your Form I-485 is being processed.
- Processing Time: The EAD is typically approved within a few months of filing. Until your EAD is physically in your hand, you must continue to maintain your existing work visa to remain employed legally.
Charting Your Path
While the approval of your NIW petition is an essential step in the green card process, it doesn’t provide immediate work authorization. To work legally in the U.S., you must either maintain a valid non-immigrant visa or file Form I-485 and obtain an EAD.
At Scott Legal, P.C., we specialize in green card applications and can help you navigate the complexities of the NIW process. We invite you to download our free guides, sign up for one of our free webinars where you can ask questions, or schedule a consultation with us today to explore your options.
