What Determines Eligibility to Work in the United States?

Numerous factors influence eligibility to work in the United States, including the type of classification you want to seek as an immigrant or nonimmigrant, current government requirements, and proof of eligibility to work. It’s important to understand the criteria you must meet if you wish to gain employment in Illinois or any other state in the U.S. as an immigrant or nonimmigrant worker.

A U.S. border Security agent, inspecting passport at the U.S. customs. Eligibility to work in the United States.

Types of Immigration Statuses and Their Implications on Work Eligibility

One of the main factors that will gauge eligibility to work in the United States is your immigrant status. Noncitizens may work in the U.S. if they are permanent or temporary workers, with the former being lawful permanent residents and the latter being nonimmigrant workers.

These classifications have different requirements in place that people must meet if they wish to gain lawful employment in this country. The following are requirements for a work visa based on immigrant status:

Lawful Permanent Residents

Lawful permanent residents (LPRs) can gain employment in the U.S. with preference visas. Depending on the category, it may require a job offer from a qualified employer based in the U.S., leading the applicant to obtain labor certification.

The following are the preference visas that could authorize LPRs to work in the U.S.:

  • First Preference EB-1: This preference applies to individuals who display “extraordinary ability” in athletics, arts, sciences, business, or education fields. Additionally, multinational managers and executives along with outstanding researchers and professors may apply for a work visa under this category. Labor certification is not a requirement for this preference.
  • Second Preference EB-2: Individuals who display “exceptional ability” in the fields of business, art, or sciences may apply in this category. It also applies to people in occupations with advanced degrees. You will need labor certification in this category unless you qualify for a national interest waiver.
  • Third Preference EB-3: Skilled workers, professionals, and other job classifications can apply for this preference visa, which requires labor certification in all cases.
  • Fourth Preference EB-4: “Special immigrants” can apply for this visa, including U.S. foreign service post workers, religious workers, noncitizen minors who serve as American court wards, and retired international organization employees, among other noncitizen workers. A labor certification is not needed for this category.
  • Fifth Preference EB-5: Investors who make investments of $900,000 or $1.8 million may be able to apply for this preference if they invest in a targeted employment area. Specifically, this investment must go toward a new business venture with a minimum of 10 full-time workers in the U.S. No labor certification is required for this preference.

Nonimmigrant Visa Holders

Some individuals may want to enter the country as nonimmigrants to gain employment, in which cases they may enter via a petition with their prospective employers with U.S. Citizenship and Immigration Services (USCIS).

These applicants may be spouses and children of American residents, with multiple nonimmigrant categories available for workers.

Some examples of these classifications can include CW-1, which is for a CNMI-Only transitional worker, E-1 through E-3 visas for treaty traders and other qualified employees, H-1B visas for workers in specialty occupations or subclassifications, and I visas for representatives in the field of information media.

Regardless of the category, it’s critical to know what businesses and workers should know about L1 visas and other types of visas before beginning to apply for nonimmigrant work in the U.S. The USCIS website provides more information about these categories and their requirements. These categories also differ, depending on whether you’re a spouse or child nonimmigrant seeking work in the U.S.

Undocumented Immigrants

Today, undocumented immigrants share many of the same rights as documented immigrant and nonimmigrant workers in the country, but there are some key exceptions.

The Fair Labor Standards Act (FLSA) helps ensure undocumented immigrants benefit from many of the same protections as documented immigrants and citizens. Specifically, the FLSA establishes that undocumented immigrants have the right to minimum wage based on federal and state laws in place. Generally, undocumented immigrants have access to these benefits in the state of Illinois under the Illinois Workers’ Compensation Act.

What Documents Are Required for Immigration Employment Eligibility?

When determining eligibility to work in the United States, immigrants and nonimmigrants may need different types of documentation to prove eligibility. Depending on the situation, a few of these key documents include:

Federal Tax Documentation

Noncitizens applying for work in the U.S. may need to obtain and maintain federal tax information. Details from the Internal Revenue Service (IRS) can inform you of Taxation of Nonresident Aliens.

Labor Certification

Some preference visas for permanent workers in the U.S. will also require labor certification from U.S. employers who’ve made job offers. These employers will function as sponsors for the immigrant worker and provide sponsorship through a Department of Labor (DOL)-issued labor certification.

Specifically, the labor certification documentation will indicate:

  • That the position is in need of foreign workers when suffering a lack of available, willing, and qualified workers based in the U.S.
  • That employing the applicant won’t have a negative impact on American workers, including their working conditions or income.

Do You Need a Social Security Number to Work in the United States?

Another critical piece of documentation is a Social Security number (SSN). SSNs are necessary for immigrants and nonimmigrants to gain lawful employment and receive other types of benefits from the U.S. government.

If you are a noncitizen and want to obtain an SSN, you will need to receive permission from the Department of Human Services (DHS) to work in the U.S.

How Does the Eligibility Verification Process Work?

Before you can gain employment in the U.S. with a work visa, you must complete the eligibility verification process, which requires sufficient documentation. One important document involved in this process is Form I-9.

What Is Form I-9?

Form I-9, Employment Eligibility Verification, determines employees’ eligibility to work legally in the U.S. Employers must complete one form per employee, including citizen and noncitizen employees. Additionally, employees must complete this form to be eligible to work in the country.

To supplement the form, employees need to provide evidence of their identity and further proof of eligibility.

Once completed, employees and employers will submit this form to either USCIS or U.S. Immigrations and Customs Enforcement (ICE).

What Happens if You Lose Your Job?

Immigrant and nonimmigrant workers could lose their job while employed in the U.S., whether for reasons specific to that employee or due to general company-wide layoffs. In the event of losing your job, you should know what happens if you get fired on a work visa.

In most cases, such as if you are on an H-1B visa, you will immediately become “out of status” if you lose your job in the U.S. Without work, you could face deportation if you aren’t in the country with a valid job. However, you still have options available to you to help avoid removal while on a work visa.

Employees who lose their job while in the country on work visas have a grace period of 60 days to find new employment. This grace period starts on the last day of work and continues for about another two months, unless the expiration date of your I-94 is sooner.

If you are unable to find a new job or don’t want to leave the U.S. after losing your job, you also have the option of applying for a different type of visa to remain in the country. For example, you could apply for a B-2 tourist visa that allows you to remain in the country as a tourist while you’re unemployed. While on this visa, you could continue seeking employment beyond the 60-day grace period. This tactic could also work with student visas, O visas, TN visas, and other visa classifications.

Getting Help from an Attorney

If you need help determining eligibility to work in the United States or have other concerns regarding immigration to the country, consider consulting with an immigration legal services attorney in Illinois to discuss your needs. A good immigration lawyer will help you determine eligibility and assist with:

  • Preparing and completing the necessary paperwork, including Form I-9 and other relevant documentation
  • Determining the right visa as an immigrant or nonimmigrant worker
  • Checking on the progress of visa processing

Regardless of your goals, it’s important to determine eligibility to work in the United States if you wish to work legally in this country on a valid visa, which will depend on the type of visa you want to obtain and the requirements currently in place for immigrant and nonimmigrant workers.