THE EMPLOYMENT OF ALIENS IN THE UNITED STATES
A Guide for Employers and Aliens
INTRODUCTION
The Immigration Reform and Control Act of 1986 prohibits the
employment of aliens who do not have work authorization and
requires employers to ask all job applicants for documents
that verify their work authorization and establish their identity.
The law lists various documents, such as passports and birth
certificates, that may be used for this purpose. The employer
need not verify the authenticity of the document, and must
accept any document that "reasonably appears on its face to
be genuine." Employers may not demand any one specific document,
such as an alien's "green card," but must accept any document
on a specified list permitted by regulation to prove identity
and/or employment authorization. I hope that this brochure
will be helpful to employers, employees, would-be employees,
U.S. citizens, aliens and others. Any person who desires more
detailed information should contact me.
< Allen E. Kaye
I. CLASSES OF NONIMMIGRANT ALIENS WHO MAY BE
LAWFULLY EMPLOYED IN THE UNITED STATES
A. EMPLOYMENT BASED ON CLASSIFICATION
The following classes of nonimmigrant aliens are authorized
to be employed in the United States by the specific employer
who has secured the visa status for the alien worker, and
subject to the restrictions indicated below. An alien in one
of these classes is not issued an employment authorization
document by the U.S. Immigration & Naturalization Service
(INS):
(A-1) A foreign government official (ambassador, public
minister, career diplomatic or consular officer). An alien
in this status may be employed only by a foreign government
or entity.
(A-2) A foreign government official. An alien in this
status may be employed only by the foreign government entity.
(A-3) An employee of a foreign government official
(attendants, servants or personal employees of A-1 and A-2
nonimmigrant aliens). An alien in this status may be employed
only by the foreign government official.
(E-1) Treaty trader. An alien in this status may be
employed only by the treaty-qualifying company through which
the alien attained the status. Employment authorization does
not extend to the dependents of the principal treaty trader
(also designated "E-1").
(E-2) Treaty investor. An alien in this status may
be employed only by the treaty-qualifying enterprise through
which the alien attained the status. Employment authorization
does not extend to the dependents of the principal treaty
investor (also designated "E-2").
(F-1) A student who is in valid nonimmigrant student
status. The student:
(i) is permitted on-campus employment
for not more than 20 hours per week when school is in session,
or full-time employment when school is not in session if the
student intends to attend and is eligible for the next term
or session. Part-time on-campus employment is authorized by
the school and no specific endorsement by a school official
or INS officer is necessary. No INS Employment Authorization
Card, Form I-688B, is required.
(ii) is permitted part-time off-campus
employment authorization for not more than 20 hours per week
when school is in session, or full-time employment when school
is not in session, based upon an approved attestation from
the employer. The student must present a Form I-20 endorsed
by the designated school official. No INS Employment Authorization
Card, Form I-688B, is required.
(iii) is permitted employment for
purposes of curricular practical training ("alternate work/study,
internship, cooperative education or any other type of required
internship or practicum which is offered by sponsoring employers
through cooperative agreements with the school"). The student
must present a Form I-20 endorsed by the designated school
official indicating the name of the employer and dates of
permitted employment. No INS Employment Authorization Document,
Form I-688B, is required.
(G-1) A representative of an international organization
(principal resident representative of recognized foreign member
government to international organization) and representative's
staff. An alien in this status may be employed only by the
foreign government entity or the international organization.
(G-2) A representative of an international organization
(other representative of recognized foreign member government
to international organization). An alien in this status may
be employed only by the foreign government entity or the international
organization.
(G-3) A representative of an international organization
(representative of nonrecognized or nonmember foreign government
to international organization). An alien in this status may
be employed only by the foreign government entity or the international
organization.
(G-4) A representative of an international organization
(international organization officer or employee). An alien
in this status may be employed only by the foreign government
entity or the international organization.
(G-5) A personal employee of an official or representative
of an international organization. An alien in this status
may be employed only by the official or representative of
the international organization.
(H-1A) Registered nurse. An alien in this status may
be employed only by the petitioner through whom the status
was obtained.* (Not presently available.)
(H-1B) Temporary worker in a specialty occupation,
or a fashion model. Specialty occupation means an occupation
which requires theoretical and practical application of highly
specialized knowledge in fields of human endeavor including,
but not limited to, architecture, engineering, mathematics,
physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts,
and which requires the attainment of a bachelor's degree or
higher in a specific specialty, or its equivalent, as a minimum
for entry into the occupation in the United States. An alien
in this status may be employed only by the petitioner through
whom the status was obtained.* An H-1B temporary worker can
work for more than one employer, if each employer files the
necessary petition.
(H-2A) Temporary worker coming to perform agricultural
labor or services. An alien in this status may be employed
only by the petitioner through whom the status was obtained.*
(H-2B) Temporary worker coming to perform non-agricultural
labor or services. An alien in this status may be employed
only by the petitioner through whom the status was obtained.*
Also, any work done by such an alien must be a part of the
alien's training program.
(H-3) Temporary trainee. An alien in this status may
be employed only by the petitioner through whom the status
was obtained.*
Also, any work done by such an alien must be a part of the
alien's training program.
(I) An information media representative.
An alien in this status may be employed only by the sponsoring
foreign news agency or bureau. Employment authorization does
not extend to the dependents of an information media representative
(also designated "I").
(J-1) An exchange visitor. An alien in this status
may be employed only by the exchange visitor program sponsor
or appropriate designee and within the guidelines of the program
approved by the United States Information Agency as set forth
in the Certificate of Eligibility (Form IAP-66) issued by
the program sponsor.
(L-1) An intracompany transferee. An alien in this
status may be employed only by the petitioner through whom
the status was obtained.*
(O-1) An alien having extraordinary ability in the
sciences, arts, education, business, or athletics. An alien
in this status may be employed only by the petitioner through
whom the status was obtained.*
(O-2) An alien accompanying an O-1 alien. An alien
in this status may be employed only by the petitioner through
whom the status was obtained.*
(P-1) An alien performing as an athlete, individually
or as part of a group or team, at an internationally recognized
level of performance, coming solely for the purpose of performing
as such an athlete with respect to a specific athletic competition
or to perform with, or as an integral and essential part of,
the performance of an entertainment group that has been recognized
internationally as being outstanding in the discipline for
a sustained and substantial period or time, and who has had
a sustained and substantial relationship with the group (ordinarily
for at least one year) and provides functions integral to
the performance of the group. An alien in this status may
be employed only by the petitioner through whom the status
was obtained.*
(P-2) An alien coming temporarily to the United States
to perform as an artist or entertainer, individually or as
part of a group, or to perform as an integral part of the
performance of such a group, and who seeks to perform under
a reciprocal exchange program which is between an organization
or organizations in the United States and an organization
or organizations in one or more foreign states, and which
provides for the temporary exchange of artists and entertainers,
or groups of artists and entertainers. An alien in this status
may be employed only by the petitioner through whom the status
was obtained.*
(P-3) An alien artist or entertainer who is coming
temporarily to the United States, either individually or as
part of a group, or as an integral part of the performance
of the group, to perform, teach, or coach under a commercial
or noncommercial program that is culturally unique. An alien
in this status may be employed only by the petitioner through
whom the status was obtained.*
(Q) An international cultural exchange visitor. An
alien in this status may be employed only by the petitioner
through whom the status was obtained.
(R) An alien having a religious occupation. An alien
in this status may be employed only by the religious organization
through whom the status was obtained.
(NATO-1 through NATO-6) Officers and personnel of the
armed services of nations of NATO, and representatives, officials,
and staff employees of NATO. An alien in this status may be
employed only by NATO.
(NATO-7) An attendant, servant or personal employee
of an alien admitted as a NATO-1, NATO-2, NATO-3, NATO-4,
NATO-5, or NATO-6. An alien admitted under this classification
may be employed only by the NATO alien through whom the status
was obtained.
(TN) An alien who is a citizen of Canada or Mexico
and seeks to enter the United States under and pursuant to
the provisions of Annex 1603, of Section A of the U.S.-Canada-Mexico
Free Trade Agreement to engage in business activities at a
professional level as provided for therein may be admitted
for such purpose under regulations of the Attorney General.
Note: A nonimmigrant alien in A-3, E-1, G-5, H-1, H-2A,
H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R & TN status
whose status expired but who has filed a timely application
for an extension of stay is authorized to continue employment
with the same employer for a period not to exceed 240 days
beginning on the date of the expiration of the authorized
period of stay. Such authorization is subject to any conditions
and limitations noted on the initial authorization. If the
INS district director or regional service center director
adjudicates the application prior to the expiration of the
240-day period and denies the application for extension, the
employment authorization automatically terminates upon notification
of the denial decision.
*Generally holders of this visa status
must be employed at the location described on the approved
visa petition obtained by the employer.
B. EMPLOYMENT BASED ON PERMISSION
(ALIENS WHO MUST APPLY FOR EMPLOYMENT AUTHORIZATION)
An alien within the following classes of aliens must apply
for work authorization. She/he may not engage in employment
without it. If authorized, such an alien may accept employment
subject to any restrictions stated below or in the INS regulations
or cited on the INS Employment Authorization Document (Form
I-688B).
- An alien spouse or unmarried dependent child of a foreign
government official (A-1 or A-2) and who presents a fully
executed Form I-566 bearing the endorsement of an authorized
representative of the Department of State;
- An alien spouse or unmarried dependent child of an alien
employee of the Coordination Council for North American
Affairs (E-1);
- A nonimmigrant (F-1) student who:
(i) is seeking employment for purposes
of optional practical training, provided the alien will
be employed only in an occupation which is directly related
to his or her area of studies and that he or she presents
a Form I-20 endorsed by the designated school official to
INS. The F-1 student must present an INS Employment Authorization
Document, Form I-688B, before employment may commence. The
student is limited to twelve months of optional practical
training during his or her school career. The practical
training may be done either during or after completion of
studies.
(ii) has been offered employment
under the sponsorship of an international organization within
the meaning of the International Organization Immunities
Act and who presents written certification from the international
organization that the proposed employment is within the
scope of the organization's sponsorship. The F-1 student
must also present a Form I-20 endorsed by the designated
school official in the last 30 days. The F-1 student must
present an INS Employment Authorization document, Form I-688B,
before employment may commence.
(iii) is seeking employment because
of severe economic hardship and has filed the Form I-20,
Form I-538 and any other supporting materials, such as affidavits
which further detail the unforeseen economic circumstances,
may require the student to seek employment authorization
and evidence the fact that the student has attempted to
find employment through on-campus jobs or through the pilot
off-campus employment program. This F-1 student must present
an INS Employment Authorization Document, Form I-688B, before
employment may begin.
(iv) has been offered employment
as part of a pilot off-campus employment program. The designated
school official approves by endorsing Form I-20.
- An alien spouse or unmarried dependent child of an officer
of, representative to, or employee of, an international
organization (G-1, G-3 or G-4) who presents a fully executed
Form I-566 bearing the endorsement of an authorized representative
of the Department of State.
- An alien spouse or minor child of a (J-1) exchange visitor.
(They are J-2 visa holders). The J-2 visa holder must present
an Employment Authorization Document, INS Form I-688B.
- A nonimmigrant (M-1) student (individual enrolled in a
nonacademic or vocational program) seeking employment for
practical training following completion of studies. The
alien may be employed only in an occupation or vocation
directly related to his or her course of study as recommended
by the endorsement of the designated school official on
Form I-20. No M-1 will receive a practical training period
in excess of six months. The M-1 student must present an
INS Employment Authorization Document, Form I-688B, before
employment may commence.
- A dependent of an alien classified as a NATO-1 through
NATO-7.
- An alien who has filed a complete application for asylum
or withholding of removal, if 150 days have passed since
the application was filed or if the application has been
recommended for approval but the benefit has not yet been
actually granted. Employment authorization shall be granted
in increments not exceeding one year during the period the
application is pending (including any period when an administrative
appeal or judicial review is pending) and will expire on
a specified date. The alien will receive an INS Employment
Authorization Document, Form I-688B.
- An alien who has filed an application for adjustment of
status to lawful permanent resident. Employment authorization
is granted in increments not exceeding one year during the
period the application is pending (including any period
when an administrative appeal or judicial review is pending)
and will expire on a specified date. The alien will receive
an INS Employment Authorization Document, Form I-688B.
- An alien who has filed an application for suspension of
deportation (former law) or cancellation of removal (current
law). Employment authorization is granted in increments
not exceeding one year during the period the application
is pending (including any period when an administrative
appeal or judicial review is pending) and will expire on
a specified date. The alien will receive an INS Employment
Authorization Document, Form I-688B.
- An alien paroled into the United States temporarily for
emergent reasons or reasons deemed strictly in the public
interest. The alien will receive an INS Employment Authorization
Document, Form I-688B.
- An alien against whom there is a final order of deportation
or removal who has been released under supervision may be
granted permission to be employed if all countries designated
to receive the alien have refused to do so or if removal
is impracticable or not in the public interest. The alien
will receive an INS Employment Authorization Document, Form
I-688B.
- An alien who has been granted deferred action (an act
of administrative discretion by the government which gives
some cases low priority status, effectively deferring deportation
indefinitely), if the alien establishes an economic necessity
for employment. The alien will receive an INS Employment
Authorization Document, Form I-688B.
- An alien who has filed an application for creation of
record of lawful admission for permanent residence pursuant
to 8 CFR, Part 249. Employment authorization is granted
in increments not exceeding one year during the period the
application is pending (including any period when an administrative
appeal or judicial review is pending) and will expire on
a specific date. The alien will receive an INS Employment
Authorization Document, Form I-688B.
- A nonimmigrant visitor for business (B-1) who:
(i) is a personal or domestic servant
accompanying or following to join an employer who seeks
admission into, or is already in, the United States as a
nonimmigrant B, E, F, H, I, J, L visa holder or under Section
214(e) of the Act. The personal or domestic servant must
have a residence abroad which he or she has no intention
of abandoning, and must demonstrate at least one year's
experience as a personal or domestic servant. The employer
must demonstrate that the employer/employee relationship
has existed for at least one year prior to the employer's
admission to the United States; or, if the employer/employee
relationship existed for less than one year, that the employer
has regularly employed (either year-round or seasonable)
personal or domestic servants over a period of several years
preceding the employer's admission to the United States;
(ii) is a domestic servant of a
United States citizen accompanying or following to join
his or her United States citizen employer who has a permanent
home or is stationed in a foreign country, and who is visiting
temporarily in the United States. The employer/employee
relationship must have existed prior to the commencement
of the employer's visit to the United States;
(iii) is an employee of a foreign
airline engaged in international transportation of passengers
or freight, whose position with the foreign airline would
otherwise entitle the employee to E-1 classification, and
who is precluded from such classification solely because
the employee is not a national of the country of the airline's
nationality or because there is no treaty of commerce and
navigation in effect between the United States and the country
of the airline's nationality.
- An alien applying for Temporary Protected Status may be
granted employment authorization from the INS. The alien
will receive an INS Employment Authorization Document, Form
I-688B.
- An alien who has filed a complete application for legalization
under either 1986 amnesty program (Section 210 or 245A of
the INA) may be granted employment authorization by INS,
in one year increments, while the application is pending
(including the period when an administrative appeal is pending).
The alien will receive an INS Employment Authorization Document,
Form I-688A.
II. EMPLOYMENT OF FOREIGN STUDENTS
Under the F-1 regulatory scheme, there are four categories
of employment for F-1 students. They are:
- On-Campus Employment
- Off-Campus Employment Through a Period of Practical Training
a) Optional Practical Training Before
Completion of Studies
b) Optional Practical Training After Completion
of Studies
c) Curricular Practical Training
- Off-Campus Employment
a) Off-Campus Employment Due To Severe
Economic Hardship
b) Pilot Off-Campus Employment Program
- Internship with an International Organization "Employment"
is defined by the INS as "any type of work performed, or
services provided, in exchange for money, tuition, fees,
books, supplies, room, food or any other benefit." If a
student receives no pay or other benefit for work performed,
this activity is considered voluntary work rather than employment.
DOCUMENTATION REQUIRED (IF ANY):
- On-Campus Employment - No documentation required.
- Curricular Practical Training - No INS Employment Authorization
document Form I-688B required. The designated school official
approves by endorsing Form I-20 (Student) copy.
- Pilot Off-Campus Employment Program - Same as above.
- Optional Practical Training - INS Employment Authorization
Document Form I-688B, required.
- Internship with International Organization - Same as above.
- Off-Campus Employment Due to Severe Economic Hardship
- INS Employment Authorization Document, Form I-688B required.
III. EMPLOYER DETERMINATION OF AUTHORIZATION
TO WORK
An alien authorized to work should have in his possession
a document from List A or List C below. However, before beginning
employment, whether alien or U.S. citizen, the future employee
must present a document that establishes identity (see List
A & B below) and employment eligibility (see List A & C below).
Documents on List A establish both identity and employment
eligibility. If the person seeking employment cannot present
a List A document, he or she must present a List B and a List
C document. A form I-9 must be filled out by the employer
and signed by both the person seeking employment and the employer
or authorized representative. This form will record what documents
were submitted to the employer. It is not necessary for the
employer to keep a copy of the document(s) presented, although
some suggest that the employer should do so.
LIST OF ACCEPTABLE DOCUMENTS (List A or List B)
LIST A (Documents that Establish
Both Identity and Employment Eligibility)
- U.S. Passport (expired or unexpired)
- Unexpired Foreign Passport and I-94 indicating unexpired
employment authorization
- I-94 with an I-551 stamp and picture (acceptable for the
first 180 days after employment begins)
- I-94 Card with a Refugee Admission Stamp (acceptable
for the first 90 days after employment begins)
- Alien Registration Receipt Card with Photograph (INS Form
I-151 or I-551)
- Unexpired Temporary Resident Card (INS Form I-688)
- Unexpired Employment Authorization Card (INS Form I-688A)
- Unexpired Employment Authorization Documents issued by
the INS which contains a photograph (INS Form I-688B)
LIST B (Documents that Establish
Identity)
- Driver's license or ID card issued by a state or outlying
possession of the United States, provided it contains a
photograph or information such as name, date of birth, sex,
height, eye color, and address
- ID card issued by federal, state or local government agency
or entity provided it contains a photograph or information
such as name, date of birth, sex, height, eye color, and
address
- School ID card with a photograph
- Voter's registration card
- U.S. Military card or draft record
- Military dependent's ID card
- U.S. Coast Guard Merchant Mariner Card
- Native American tribal document
- Driver's license issued by a Canadian government authority
For persons under age 18 who are unable to present a document
listed above:
- School record or report card
- Clinic, doctor, or hospital record
- Day-care or nursery school record
AND LIST C (Documents that Establish
Employment Eligibility)
- U.S. social security card issued by the Social Security
Administration (other than a card stating it is not valid
for employment)
- Certification of Birth Abroad issued by the Department
of State (Form FS-545 or Form DS-1350)
- Native American tribal document
- U.S. Citizen ID Card (INS Form I-197)
- ID Card for use of Resident Citizen in the United States
(INS Form I-179)
- Unexpired employment authorization document issued by
the INS (other than those listed under List A)
FURTHER INQUIRIES
Further information about the specific categories of nonimmigrant
visas listed above or employment authorization or acceptable
identity and employment eligibility documents can be obtained
from Allen E. Kaye.
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