Employing Foreign Nationals
There is a direct relationship between an alien's status and the type of document issued to him or her by the Department of Homeland Security, (i.e., U.S. Citizenship and Immigration Services or "USCIS"). Employers should become familiar with the different category types.
1. Persons Authorized to Permanent, Unrestricted Employment
Common evidence of work authorization:
Employment Available to:
Note: Employers should know that only aliens who check the "lawful permanent resident" box on Form I-9 Section 1 would be authorized (but not required) to present a "Green Card" for Section 2 purposes.
2. Persons Authorized to Temporary, Unrestricted Employment
Common Evidence of work authorization:
To evidence work authorization that is temporary and unrestricted, an employee will show an employment authorization document (EAD on Form I-688B, Form I-766, or Form I-688A in certain legalization cases). EADs are issued to aliens for several different purposes. Common categories of EAD holders include aliens awaiting adjustment of status, fiancé(s) in K-1 status, and aliens granted Temporary Protected Status (TPS).
Employers may want to keep in mind that aliens who check the "alien authorized to work until [insert date]" box in I-9 Section 1 will be authorized to present an EAD for Section 2 purposes.
EADs are generally valid for one year. Similarly, the work authorization expiration date listed in I-9 Section 1 will often be the expiration date of the EAD presented for Section 2 purposes.
3. Persons Authorized for Temporary, Restricted Employment (Employer-Specific)
Common Evidence of work authorization: Form I-94 Arrival-Departure Record showing endorsement of employer-specific classification and unexpired period of admission.
Employment Available to: Aliens granted employer-specific employment-based classifications, including A-1, A-2, and A-3, C-2 and C-3, E-1 and E-2, F-1 (for on campus employment and curricular practical training only, and only if presented with Form I-20 endorsed for the specific employment), G-1, G-2, G-3, G-4 and G-5, H-1b, H-1c, H-2a, H-2b, and H-3, I, J-1, L-1a and L-1b, O-1 and O-2, P-1, P-2 and P-3, Q, R-1, NATO, TN-1, and N?2. See 8 CFR 274a.12 for more information available at www.uscis.gov.
Employer-specific employment authorization is evidenced on the Form I-94, Arrival-Departure Record that aliens receive and must retain with their passports. Upon admission into the US, these forms are stamped or marked with the arriving aliens? immigration classification and with the period of authorized stay in the USunder that classification.
In order to be acceptable as proof of work eligibility, the stamp must specify that employment is authorized or indicate an unexpired nonimmigrant admission. A stamp indicating a nonimmigrant admission means that the alien may work for the approved employer(s) and for no other employer(s) until expiration of the indicated period of approved stay.
Therefore, only US employers whose petitions to employ these aliens have been approved by the Department of Homeland Security, U.S. Citizenship and Immigration Services may accept this documentation to satisfy employment eligibility verification requirements of Form I-9. The employee can work for the petitioning employer(s) until the period of admission/work authorization approved by the Department of Homeland Security, expires. The back of Form I-94 may also be completed by which to indicate employment restriction for those aliens authorized to work temporarily only for a single employer. With limited exceptions, aliens are obligated to relinquish their I-94 when leaving the US.
4. Persons Unauthorized for Employment
Nonimmigrant Classification - Employment Eligibility and Reference Guide - Work Authorizations Relating to Nonimmigrant Visa Classifications--Employment Eligibility Terms
A. “Incident to Status”--Eligible for Employment Authorization Document ("EAD") incident to status:
B. “Employer Specific--The FN may only be employed by the specific employer and subject to the restrictions indicated as a condition of his or her admission or immigration status by the USCIS.
C. "Not Eligible for Employment"-- The FN is not eligible for employment by a United States employer.
Class | Class & Description | Employment Eligibility |
B-1 | Temporary Visitor for Business
| Not eligible for employment, except servants of holders of B, E, F, H, I, J, L, NAFTA visas or a U. S. citizen residing in a foreign country and certain employees of airlines not eligible for E-1 status. Such servants must apply for employment authorization. |
B-2 | Temporary Visitor for Pleasure | Not eligible for employment |
E-1 | Treaty Trader and employees, spouse, and children. | Employer-specific; Spouses in same classification are eligible for EAD incident to status; children are not eligible for employment. |
E-2 | Treaty Investor and employees, spouse, and children | Employer-specific; Spouses in same classification are eligible for EAD incident to status; children are not eligible for employment. |
E-3 | Treaty Professional Visa for Australian Nationals | Employer-specific; requires a job offer in a specialty occupation. Spouse may apply for EAD with any employer. |
F-1 | Academic Student (except Border Commuters from Canada or Mexico, see below) | Eligible for on campus employment and curricular practical training incident to status (no separate EAD necessary). Must apply for employment authorization for optional practical training or to work off-campus. |
F-1/F-3 | Border Commuter Academic Students from Canada and Mexico | Must apply for employment authorization for curricular practical training or post-completion optional practical training. |
F-2 | Spouse or child of F-1 | Not eligible for employment. |
H-1b
| Alien in Specialty Occupation (profession) | Employer-specific |
H-1c
| Registered Nurse serving in underserved area | Employer-specific |
H-2a | Temporary worker performing Agricultural Services unavailable in the United States | Employer-specific
|
H-2b
| Temporary worker performing other services unavailable in the United States | Employer-specific
|
H-3 | Trainee | Employer-specific |
H-4 | Spouse or child of H-1, H-2, or H-3 | Not eligible for employment |
J-1 | Exchange Visitor | Employer-specific |
J-2
| Spouse or child of J-1 | Must apply for employment authorization. |
K-1
| Fiancé (e) | Eligible for EAD incident to status |
K-2 | Minor child of K-1 | Eligible for EAD incident to status |
K-3 | Spouse of US citizen | Eligible for EAD incident to status |
K-4 | Child of K-3 | Eligible for EAD incident to status |
L-1A
| Intracompany Transferee (manager or executive) | Employer-specific |
L-1B
| Intracompany Transferee (specialized knowledge) | Employer-specific |
L-2
| Spouse or child of L-1 | Spouses of L-1s are eligible for EAD incident to status children are not eligible for employment |
M-1
| Non-academic student (except Border Commuters from Canada or Mexico, see below) | Must apply for employment authorization for post- completion optional practical training. |
M-1/M-3
| Border Commuter Non-Academic Students from Canada and Mexico | Must apply for employment authorization for post- completion optional practical training |
M-2 | Spouse or child of M-1 | Not eligible for employment. |
O-1
| Alien with Extraordinary Ability in sciences, arts, education, business, or athletics | Employer-specific
|
O-2
| Aliens accompanying or assisting O-1 performers or athletes. | Employer-specific |
O-3 | Spouse or child of O-1 or O-2 | Not eligible for employment under this category |
P-1
| Individual or Team Athletes, and Group Entertainers. | Employer-specific |
P-2
| Individual/Group Artist/ Entertainer under Reciprocal Exchange Program. | Employer-specific
|
P-3
| Artist or Entertainer in Culturally Unique Program. | Employer-specific |
P-4
| Spouse or child of P-1, P-2, or P-3 | Not eligible for employment under this category |
Q-1
| International Cultural Exchange Visitor | Employer-specific |
Q-2
| Irish Peace Process Cultural and Training Program (Walsh visas) | Employer-specific |
Q-3 | Spouse or child of Q-2 | Not eligible for employment |
R-1 | Religious Worker | Employer-specific |
R-2 | Spouse or child of R-1 | Not eligible for employment |
TN-1
| Canadian NAFTA Professional | Employer-specific |
TN-2 | Mexican NAFTA Professional | Employer-specific |
TD | Spouse or child of TN-1 or TN-2 | Not eligible for employment |
V-1
| Spouse of Lawful Permanent Resident who is the principal beneficiary of a family-based petition. | Eligible for EAD incident to status
|
V-2
| Child of Lawful Permanent Resident who is the principal beneficiary of a family-based petition. | Eligible for EAD incident to status
|
V-3 | Derivative child of a V-1 or V-2 | Eligible for EAD incident to status |
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Copyright © 2008 by Goulder Immigration Law Firm. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.