Chapter 2 - Eligibility Requirements

Whether or not a noncitizen is authorized to work in the United States depends on his or her immigration status or circumstances.[1] The regulations outline three classes of eligibility for employment authorization:

  • Authorization to work for any employer based on immigration status or circumstances;[2]

  • Authorization to work for a specific employer based on immigration status or circumstances;[3] and

  • Authorization to work for any employer, as well as to engage in self-employment, upon approval, in the discretion of USCIS, of an Application for Employment Authorization (Form I-765).[4]

A. Authorized to Work for Any Employer Based on Status or Circumstances

The following noncitizens are automatically authorized to work based on their status or circumstance:[5]

  • Lawful permanent residents (LPRs) (with or without conditions);[6]

  • Lawful temporary residents;[7]

  • Refugees;[8]

  • Asylees;[9]

  • Fiancé(e)s of U.S. citizens or children of such fiancé(e)s (K-1 or K-2 nonimmigrants);[10]

  • Parents or dependent children of persons granted LPR status based on being an employee of a recognized international organization (or such an employee’s family member);[11]

  • Citizens of Micronesia, the Marshall Islands, or Palau;[12]

  • Spouses of U.S. citizens or children of such spouses (K-3 or K-4 nonimmigrants);[13]

  • Persons granted withholding of deportation or removal;[14]

  • Persons under Deferred Enforced Departure (DED);[15]

  • Persons granted temporary protected status (TPS);[16]

  • Persons granted voluntary departure under the Family Unity Program or granted Family Unity benefits;[17]

  • V nonimmigrants;[18]

  • Victims of severe forms of trafficking in persons (T-1 nonimmigrants);[19]

  • Victims of qualifying criminal activity (U-1 nonimmigrants)[20] and certain qualifying family members (U-2, U-3, U-4, and U-5 nonimmigrants);[21] and

  • Noncitizens granted Commonwealth of the Northern Mariana Islands (CNMI) resident status (employment authorization is limited to the CNMI).[22]

A noncitizen in one of these statuses or circumstances[23] is authorized to work in the United States without restriction.

Although employment authorization is automatic, generally noncitizens in these categories still need to submit Form I-765 to USCIS with the appropriate fee, and in accordance with the form instructions,[24] to receive an Employment Authorization Document (EAD) as evidence of such authorization if they intend to work in the United States.[25]

B. Authorized to Work for Specific Employer Based on Status or Circumstances

The following nonimmigrants and parolees are automatically authorized to work for a specific employer based on their particular nonimmigrant status or parole:[26]

  • Foreign government officials (A-1 or A-2 nonimmigrants), or employees of such official (A-3 nonimmigrants);[27]

  • Foreign government officials in transit (C-2 or C-3 nonimmigrants);[28]

  • Treaty traders (E-1 nonimmigrants) or treaty investors (E-2 nonimmigrants);[29]

  • Students (F-1 nonimmigrants) who are seeking:

    • On-campus employment;

    • Curricular practical training;

    • An EAD based on a STEM Optional Practical Training (OPT) extension,[30] and whose timely filed Form I-765 or successor form is pending and whose employment authorization and accompanying Form I-766 or successor form was issued based on post-completion OPT;[31] or

    • H-1B nonimmigrant status and whose duration of status and employment authorization have been extended as provided in regulations;[32]

  • Representatives of an international organization (G-1, G-2, G-3, or G-4 nonimmigrants)[33] and their personal employees (G-5 nonimmigrants);[34]

  • Temporary workers or trainees (H-1, H-2, or H-3 nonimmigrants);[35]

  • Representatives of foreign information media (I nonimmigrants);[36]

  • Exchange visitors (J-1 nonimmigrants);[37]

  • Intra-company transferees (L-1 nonimmigrants);[38]

  • "Aliens of extraordinary ability in sciences, arts, education, business, or athletics" (O-1 nonimmigrants), "and an accompanying alien" (O-2 nonimmigrants);[39]

  • Athletes, artists, or entertainers (P-1, P-2, or P-3 nonimmigrants) and essential support personnel;[40]

  • International cultural exchange visitors (Q-1 nonimmigrants);[41]

  • Religious workers (R-1 nonimmigrants);[42]

  • North Atlantic Treaty Organization (NATO) civilian employees[43] and their personal employees;[44]

  • United States-Mexico-Canada Agreement (USMCA) professionals (TN nonimmigrants);[45]

  • Temporary workers[46] who filed a Petition for a Nonimmigrant Worker (Form I-129);[47]

  • CNMI investors (E-2 nonimmigrants);[48]

  • CNMI transitional workers (CW-1 nonimmigrants);[49]

  • "Nonimmigrant treaty alien[s] in a specialty occupation" (E-3 nonimmigrants);[50] and

  • "Alien[s] paroled" as an entrepreneur for the period of authorized parole.[51]

Nonimmigrants authorized to work for a specific employer based on status or circumstances are not required to file a Form I-765 to obtain authorization to work in the United States; they receive employment authorization automatically once they are admitted into the United States in, or change to, the qualifying nonimmigrant status. These nonimmigrants are, however, subject to certain restrictions as a condition of their status. Generally, they are only allowed to work for the employer named in their respective nonimmigrant petition and only allowed to perform the type of work specified in their petition.[52] Certain classes of these nonimmigrants may continue their employment with the same employer for up to 240 days after the expiration of a prior authorized period of stay, provided they are the beneficiary of a timely filed petition or application for an extension of stay using the Petition for a Nonimmigrant Worker (Form I-129) or Application to Extend/Change Nonimmigrant Status (Form I-539).[53]

C. Noncitizens Required to Apply for Employment Authorization

The following noncitizens are not automatically authorized to work based on their immigration status or circumstance and must apply for employment authorization with USCIS:[54]

  • Noncitizen spouses or unmarried dependent children or sons or daughters of a foreign government official (A-1 or A-2 nonimmigrants) who present an endorsement from the U.S. Department of State;[55]

  • Noncitizen spouses or unmarried dependent sons or daughters of noncitizen employees of the Coordination Council for North American Affairs, also known as Taipei Economic and Cultural Representative Office (TECRO) (E-1 nonimmigrants);[56]

  • Noncitizens in nonimmigrant student (F-1 nonimmigrant) status who:

    • Are seeking pre-completion optional practical training, authorization to engage in up to 12 months of post-completion Optional Practical Training (OPT), or a 24-month STEM OPT extension;

    • Have been offered employment under the sponsorship of an international organization; or

    • Are seeking employment because of severe economic hardship;[57]

  • Noncitizen spouses or unmarried dependent children or sons or daughters of representatives of international organization (G-1, G-3, or G-4 nonimmigrants);[58]

  • Noncitizen spouses or minor children of an exchange visitor (J-2 nonimmigrants);[59]

  • Students (M-1 nonimmigrants) seeking employment for practical training;[60]

  • Dependents of NATO-1 through NATO-6 nonimmigrants;[61]

  • Applicants for asylum;[62]

  • Applicants for adjustment of status under INA 245;[63]

  • Applicants for cancellation of removal;[64]

  • Parolees;[65]

  • Noncitizen spouses of an E-2 CNMI investor;[66]

  • Noncitizens granted deferred action;[67]

  • Registry applicants based on continuous residence since January 1, 1972;[68]

  • Certain visitors for business (B-1 nonimmigrants) who are the personal or domestic servants[69] of a:

    • Nonimmigrant employer;[70] or

    • U.S. citizen.[71]

  • Certain visitors for business (B-1 nonimmigrants) employed by a foreign airline;[72]

  • Applicants under a final order of deportation or removal, including deferral of removal under the Convention against Torture (CAT);[73]

  • Applicants with pending applications for TPS;[74]

  • Applicants for adjustment as a special agricultural worker;[75]

  • Witnesses or informants and their qualified family members (S nonimmigrants);[76]

  • Applicants for legalization under INA 245A;[77]

  • Applicants for adjustment under the Legal Immigration Family Equity (LIFE) Act;[78]

  • Derivative family members of victims of a severe form of trafficking in persons (T-2, T-3, T-4, T-5, and T-6 nonimmigrants);[79]

  • Spouses of certain H-1B nonimmigrants;[80]

  • Violence Against Women Act (VAWA) self-petitioners and derivative beneficiaries;[81]

  • Spouses of entrepreneur parolees;[82] and

  • Principal beneficiaries of an approved Immigrant Petition for Alien Workers (Form I-140) facing compelling circumstances[83] and their spouse or children.[84]

Noncitizens are not automatically authorized to work and must have an EAD from USCIS as evidence of their authorization to work in the United States. Upon approval of Form I-765, the noncitizen’s type and location of employment is unrestricted.

Footnotes


[^ 1] There are no age restrictions for requesting an Employment Authorization Document (EAD, Form I-766); the EAD functions as an identity document for some noncitizens.

[^ 2] See 8 CFR 274a.12(a).

[^ 3] See 8 CFR 274a.12(b).

[^ 4] See 8 CFR 274a.12(c). See Matter of Tong (PDF), 16 I&N Dec. 593, 593 (BIA 1978).

[^ 5] See 8 CFR 274a.12(a).

[^ 6] See 8 CFR 274a.12(a)(1).

[^ 7] See 8 CFR 274a.12(a)(2).

[^ 8] Including those paroled into the United States as a refugee for a period of time. See 8 CFR 274a.12(a)(3)-(4).

[^ 9] See 8 CFR 274a.12(a)(5).

[^ 10] See 8 CFR 274a.12(a)(6).

[^ 11] See 8 CFR 274a.12(a)(7) (N-8 and N-9 nonimmigrants).

[^ 12] See 8 CFR 274a.12(a)(8).

[^ 13] See 8 CFR 274a.12(a)(9).

[^ 14] See 8 CFR 274a.12(a)(10).

[^ 15] See 8 CFR 274a.12(a)(11). DED is in the President’s discretion to authorize as part of the President's constitutional power to conduct foreign relations. Although DED is not a specific immigration status, noncitizens covered by DED are not subject to removal from the United States, usually for a designated period of time. 

[^ 16] See 8 CFR 274a.12(a)(12).

[^ 17] See 8 CFR 274a.12(a)(13)-(14).

[^ 18] See 8 CFR 274a.12(a)(15).

[^ 19] See 8 CFR 274a.12(a)(16).

[^ 20] See 8 CFR 274a.12(a)(19).

[^ 21] See 8 CFR 274a.12(a)(20).

[^ 22] See 48 U.S.C. 1806(e)(6)(A)(iv)(V)-(VI).

[^ 23] See 8 CFR 274a.12(a). Employment authorization under this category may not necessarily be associated with an immigration status technically. For example, persons who are paroled into the country or who have received voluntary departure or withholding of deportation do not technically have an immigration status.

[^ 24] See 8 CFR 274a.13. See uscis.gov/i-765.

[^ 25] See 8 CFR 274a.12(a). For example, LPRs, lawful temporary residents, asylees, spouses of U.S. citizens (K-3 nonimmigrants) or children of such noncitizens (K-4 nonimmigrants), trafficking victims (T-1 nonimmigrants), and crime victims (U-1 nonimmigrants) do not need to file Form I-765 to receive an EAD. However, in order to receive employment authorization incident to placement on the waiting list, crime victims (U-1 nonimmigrants) and their derivatives must file Form I-765.

[^ 26] See 8 CFR 274a.12(b).

[^ 27] See 8 CFR 274a.12(b)(1)-(2).

[^ 28] See 8 CFR 274a.12(b)(3).

[^ 29] See 8 CFR 274a.12(b)(5).

[^ 30] See 8 CFR 274a.12(c)(3)(i)(C).

[^ 31] See 8 CFR 274a.12(c)(3)(i)(B).

[^ 32] See 8 CFR 214.2(f)(5)(vi). See 8 CFR 274a.12(b)(6).

[^ 33] See 8 CFR 274a.12(b)(7).

[^ 34] See 8 CFR 274a.12(b)(8).

[^ 35] See 8 CFR 274a.12(b)(9).

[^ 36] See 8 CFR 274a.12(b)(10).

[^ 37] See 8 CFR 274a.12(b)(11).

[^ 38] See 8 CFR 274a.12(b)(12).

[^ 39] See 8 CFR 274a.12(b)(13).

[^ 40] See 8 CFR 274a.12(b)(14).

[^ 41] See 8 CFR 274a.12(b)(15).

[^ 42] See 8 CFR 274a.12(b)(16).

[^ 43] See 8 CFR 274a.12(b)(17).

[^ 44] See 8 CFR 274a.12(b)(18).

[^ 45] See 8 CFR 274a.12(b)(19).

[^ 46] See 8 CFR 214.2(h)(1)(ii)(C).

[^ 47] See 8 CFR 274a.12(b)(21).

[^ 48] See 8 CFR 274a.12(b)(22).

[^ 49] See 8 CFR 274a.12(b)(23).

[^ 50] See 8 CFR 274a.12(b)(25).

[^ 51] See 8 CFR 274a.12(b)(37).

[^ 52] See 8 CFR 214.1(e).

[^ 53] See 8 CFR 274a.12(b)(20).

[^ 54] See 8 CFR 274a.12(c). 8 CFR 274a.12(c) may not be comprehensive. Other authorities may exist for some categories of noncitizens who USCIS may authorize to work in the United States following an application for and approval of employment authorization. For example, see INA 204(a)(1)(K) (Violence Against Women Act self-petitioners).

[^ 55] See 8 CFR 274a.12(c)(1).

[^ 56] See 8 CFR 274a.12(c)(2).

[^ 57] See 8 CFR 274a.12(c)(3).

[^ 58] See 8 CFR 274a.12(c)(4).

[^ 59] See 8 CFR 274a.12(c)(5).

[^ 60] See 8 CFR 274a.12(c)(6).

[^ 61] See 8 CFR 274a.12(c)(7).

[^ 62] See 8 CFR 274a.12(c)(8).

[^ 63] See 8 CFR 274a.12(c)(9).

[^ 64] See 8 CFR 274a.12(c)(10).

[^ 65] See 8 CFR 274a.12(c)(11).

[^ 66] See 8 CFR 274a.12(c)(12).

[^ 67] See 8 CFR 274a.12(c)(14).

[^ 68] See 8 CFR 274a.12(c)(16).

[^ 69] See 8 CFR 274a.12(c)(17).

[^ 70] See 8 CFR 274a.12(c)(17)(i).

[^ 71] See 8 CFR 274a.12(c)(17)(ii).

[^ 72] See 8 CFR 274a.12(c)(17)(iii).

[^ 73] See 8 CFR 274a.12(c)(18).

[^ 74] See 8 CFR 274a.12(c)(19).

[^ 75] Under INA 210. See 8 CFR 274a.12(c)(20).

[^ 76] See 8 CFR 274a.12(c)(21).

[^ 77] See 8 CFR 274a.12(c)(22).

[^ 78] See Title XI of Pub. L. 106-553 (December 21, 2000). See 8 CFR 274a.12(c)(24).

[^ 79] See 8 CFR 274a.12(c)(25).

[^ 80] See 8 CFR 274a.12(c)(26).

[^ 81] See INA 204(a)(1)(K), INA 204(a)(1)(D)(i)(II), and INA 204(a)(1)(D)(i)(IV). See Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 (PDF), 108 Stat. 1796, 1902 (September 13, 1994) as amended by Title V of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1518 (October 28, 2000) and Title VIII of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960, 3053 (January 5, 2006) (providing self-petitioners eligibility for employment authorization).

[^ 82] See 8 CFR 274a.12(c)(34). See 8 CFR 212.19(h)(3).

[^ 83] See 8 CFR 274a.12(c)(35).

[^ 84] See 8 CFR 274a.12(c)(36).

Resources

Legal Authorities

8 CFR 274a Subpart B - Employment authorization

8 CFR 274a.13 - Application for employment authorization

INA 103, 8 CFR 103 - Powers and duties of the Secretary, the Under Secretary, and the Attorney General

INA 274A - Unlawful employment of aliens

Appendices

No appendices available at this time.

Updates

Technical Update - Replacing the Term “Alien”

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

POLICY ALERT - Applications for Discretionary Employment Authorization Involving Certain Adjustment Applications or Deferred Action

U.S. Citizenship and Immigration Services (USCIS) is providing policy guidance in the USCIS Policy Manual regarding applications for discretionary employment authorization based on 8 CFR 274a.12(c)(9) (pending application for adjustment of status under INA 245) or 8 CFR 274a.12(c)(14) (grant of deferred action). USCIS is also providing guidance outlining the categories of aliens eligible for discretionary employment authorization.

Read More
Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].