What is Unauthorized Employment Under US Immigration Laws?

All employees must be authorized to work in the United States. Any employment conducted without authorization can cause consequences for the individual and the employer. An employee is “an individual who provides services or labor for an employer for wages or other remuneration,” and does not include casual hires or independent contractors. 8 CFR §274a.1(f). An owner of a business is not considered an employee of his own business. Notable instances that are not considered unauthorized employment include:

• Owners are not employees. For example, in U.S. v. Intelli Transp. Servs., Inc., 13 OCAHO no. 1319, 3-4 (2019) the court held that an individual was not an employee where he had 100% ownership of the company and control over it, even though he was listed as CEO and President.

• Volunteers are not employees. Volunteers who work without any expectation of compensation are not considered employees.

• Independent Contractors are not employees. Specifically, the regulations state “employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors.” 8 CFR § 274a.1(g). The regulations further note that an “independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results.” Specifically, the factors to consider when assessing someone is an independent contractor include:

1. Whether the individual or entity supplies the tools or materials;
2. Whether services are available to the general public;
3. Whether they work for a number of clients at the same time;
4. Whether there is an opportunity for profit or loss as a result of labor or services provided;
5. Whether there has been an investment in the facilities for work;
6. Whether they direct the order or sequence in which the work is to be done and determines the hours during which the work is to be done.

• Other common examples of situations that are not considered employment include:

1. Engaging in commercial transactions
2. Negotiating contracts
3. Consulting with business associates
4. Litigation and legal matters
5. Participating in scientific, educational, professional or business conventions, conferences or seminars; and
6. Engaging in independent research. See 9 FAM 402.2

Consequences of Unauthorized Employment

If you have engaged in unauthorized employment, your future visa may be denied. In other scenarios, engaging in unauthorized employment triggers ineligibility for adjustment of status under INA section 245(c)(2). This is especially relevant if you are seeking adjustment of status on an employment-based petition (I-140) or through a family preference based petition. The only exception would be immediate family members, which are categorized as petitions filed by a US citizen spouse, US citizen adult child for their parent, or US citizen for their child.

“Through no fault of his own or for technical reasons”

If the acceptance of unauthorized employment was “through no fault of his own or for technical reasons,” the unauthorized employment bar does not apply. Under 8 CFR § 245.1(d)(2), this is limited to:

• Inaction of another person or organization designated by regulation to act on behalf of the applicant or over whose actions the applicant had no control, if the inaction is acknowledged by that person or organization;
• Technical violations resulting from inaction of USCIS;
• Technical violations caused by physical inability of applicant to request an extension

If you believe your failure to maintain status or unauthorized employment is through no fault of your own, you should discuss your case with an immigration attorney. The technical violations discussed above are complex, and courts have ruled in contradictory ways.

Section 245(k) for Employment Based Petitions

If you have engaged in unauthorized employment for 180 days or less, you may be excused for unauthorized employment or failure to maintain status under INA section 245(c)(2). The 180 days are measured from the date of the person’s last admission into the United States. For example, if a person previously overstayed their visa, departs, and then re-enters the United States through a new admission, they will have a new 180 day period in which to benefit from section 245(k).

Immediate Relatives and Adjustment of Status

The unauthorized employment bar does not apply to adjustment of status applications filed by immediate relatives. Under immigration law, an immediate relative is defined as being either:

• Spouse of a U.S. citizen.
• Unmarried child under 21 years old of a U.S. citizen.
• Parent of a U.S. citizen, but only if the U.S. citizen is at least 21 years old.

In these scenarios, engaging in unauthorized employment is not a bar to adjustment of status. Therefore, you should not be concerned about answering yes to the question “Have you ever worked in the United States without authorization” on Form I -485.

Engaging in unauthorized employment is sometimes problematic, but not always. It depends on the way in which you are seeking adjustment of status. If you are concerned about any periods of unauthorized employment, you should discuss your case with an immigration attorney.