December 28, 2018

Employment Authorization: How Can You Stay Compliant?

by Orsolya Hamar Hilt & David Bloomfield, Bloomfield & Kempf

Immigration laws and policies are changing daily; compliance has become even more challenging. In order for a non-US citizen to work in the United States, one must have either a permanent resident card (a green card), employment authorization document or employment related visa. Title 8 of the Code of Federal Regulations lists all such categories.

A permanent resident is an individual who is authorized to live and work permanently in the United States. A permanent resident card based on employment is issued for 10 years, and the permanent resident can apply for extensions or for naturalization after five years.

Employment authorization can be granted in various situations, including a person in refugee or asylum status; a fiancée of a US citizen who has permission to work must file for authorization (an EAD card); and a person in temporary protected status. The expiration date on the EAD determines how long the card holder is allowed to legally work in the US. In these situations, the card may or may not be extended. Before hiring a person with an employment authorization card, potential employers should consult immigration professionals to determine whether the card can be extended. This can save the employer from hiring a person whose work permit either expires soon or does not allow extensions.

The most commonly known temporary employment-based visa category is the H-1B visa. The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge (i.e., college education or higher). The H-1B visa may be approved for three years and can be extended for an additional three years. This is subject to quota and must be filed by April 1 for an Oct. 1 start, unless the employer is affiliated with a college or university.