RM 10211.420 Employment Authorization for Non-immigrants
A. Policy for non-immigrant employment authorization
The Department of Homeland Security (DHS) determines whether a
non-immigrant in the U.S.
-
may be employed;
-
may be self-employed; or
-
may not work.
Some non-immigrants have employment authorization by virtue of their
DHS-assigned class of admission (COA or alien classification) while other
non-immigrants may have employment authorization but only with specific
employers. See RM 10211.420G.1. in this section.
Some non-immigrants must apply to DHS for employment authorization. See
RM 10211.420G.2. in this section.
Some non-immigrants may not work and cannot apply for employment
authorization. See RM 10211.420G.3. in this section.
It is important to distinguish non-immigrants with employment
authorization from non-immigrants without employment authorization and
know what document(s) establish employment authorization.
DO NOT process an employment authorized Social Security number (SSN)
application for a non-immigrant unless the alien submits the appropriate
evidence authorizing employment.
IMPORTANT: Since a non-immigrant’s status can change, the
most recently issued DHS document supersedes all previously issued DHS
documents, for enumeration purposes. See RM 10211.510.
EXAMPLE: An alien with an I-94 that does not allow for work applies
to DHS for a different status. DHS approves the new status and issues the
alien an Employment Authorization Document (EAD, I-766). The alien applies
for an SSN card and submits both the I-94 and the new EAD. Neither
document is expired. Since the EAD is the more recently issued evidence,
the EAD is the alien’s current lawful alien status document. Do not
consider the I-94 in making the lawful alien status or employment
authorization decision or for verifying the alien’s status.
See Also:
-
RM 10211.001B.30, definition of non-immigrant
-
RM 10211.600, SSN requests from aliens who have no employment
authorization.
B. Evidence proving a non-immigrant’s employment authorization
The following documents are acceptable documents for evidence of
employment authorization for a non-immigrant under certain criteria.
For exhibits of these documents, see the Administrative Confidential
Memorandum (ACM).
1. Arrival/Departure Record, Form I-94
The Arrival/Departure Record shows one of the following.
-
A COA that has employment authorization inherent to that class. This
means, based on the COA, the person can work without additional specific
DHS authorization. See RM 10211.420G in this section.
-
A stamp or annotation that DHS admitted the alien as a refugee. See
RM 10211.185.
-
A stamp or annotation that DHS granted the alien asylum. See RM 10211.205.
2. Employment Authorization Document (EAD), Form I-766
The EAD card provides evidence of a non-immigrant’s authorization to
accept temporary employment in the U.S.
DHS issues EADs to certain non-immigrants, regardless of age, to whom DHS
grants temporary employment authorization. DHS does not issue EADs to the
following.
The front of the EAD generally displays the:
-
alien’s photograph,
-
alien’s fingerprint or “W” (stands for waived, when a
fingerprint is unavailable),
-
alien’s signature,
-
alien’s biographic information (i.e., name, date of birth),
-
category allowing the alien to work,
-
employment authorization validity period (the length of employment that is
consistent with regulatory limits on the time elements involved and a
definite date as to when employment may begin and end),
-
terms and conditions (consistent with regulatory limits on the type of
employment authorized), and
-
date and place of issue.
3. Certificate of Eligibility for Non-Immigrant (F-1) Student Status, Form I-20
The Certificate of Eligibility for Nonimmigrant (F-1) Student Status form
shows a designated school official's annotation that documents certain F-1
student’s work on campus. See RM 10211.240 and RM 10211.255.
4. Certificate of Eligibility for Exchange Visitor (J-1) Status, Form DS-2019
An exchange visitor will submit one of the following.
-
A Certificate of Eligibility for Exchange Visitor (J-1) Status showing an
employment-authorized category of J-1. See RM 10211.345A. or
-
A Certificate of Eligibility for Exchange Visitor (J-1) Status showing a
J-1 category of “student”, “student intern” or
“international visitor” and a sponsor’s letter
authorizing employment. See RM 10211.345B.
See Also:
RM 10211.365, instructions on entering DS-2019 status into SSNAP
5. Executive Office of Immigration Review (EOIR) order
The EOIR order issued by an immigration judge grants an alien asylum. See
RM 10211.205B.3.
See Also:
RM 10210.210, instructions for reviewing evidence.
C. Validity period
The validity period, shown on the face of the document (e.g., EAD or
I-20), defines the dates the non-immigrant may work in the U.S.
A document showing a future validity period is not
acceptable evidence of current employment authorization. Do not process
the SSN application until the applicant submits the employment
authorization required for the SSN card. EXCEPTION: F-1 students.
See RM 10211.245B.
D. Automatic EAD extension
An automatic EAD extension is the period beyond the EAD expiration date
when certain non-immigrants are eligible to remain in the U.S. and may
continue to work if they continue to meet certain terms and conditions. An
automatic EAD extension may occur under the following conditions.
-
DHS grant or extension of a Temporary Protected Status (TPS) designation
to certain nationals of a particular country for a temporary period. or
-
A Presidential executive order or memorandum granting a Deferred Enforced
Departure (DED) from the U.S. to certain nationals of a particular country
for a temporary period.
Generally, an automatic EAD extension is six months and provides the alien
time to register with DHS and time for DHS to issue new EAD cards to the
eligible aliens. An EAD subject to the automatic EAD extension serves as
evidence of current employment authorization.
When an alien files for an SSN replacement card 14 days or less from the
start of their AEP, separate processing applies. See RM 10211.420F in this
section.
IMPORTANT: When a TPD or DED designation or extension does not
include an automatic EAD extension, no special SSN application
instructions apply.
See Also:
E. Non-immigrants with automatic EAD extensions
The following table lists the most recent automatic EAD extension
information available.
NOTE: If a non-immigrant’s automatic EAD extension is in the
past or expires within 14 days, follow RM 10211.420F.3. in this section.
Automatic EAD Extension Chart
|
Non-immigrant’s Country of Nationality
|
Non-immigrant’s EAD Extension Specifics
|
|---|
|
El Salvador
|
Automatic EAD extension through March 9, 2011 to Salvadorian
non-immigrants whose EADs show:
See RM 10211.420F in this section for instructions on processing SSN
applications for applicants falling into this category.
See Also:
DHS’s
July 9, 2010 Federal Register notice announcing El Salvador’s EAD
extension.
|
|
Haiti
|
Automatic EAD extension through January 22, 2012 to Haitian non-immigrants
whose EADs show:
-
Category: A-12 or C-19
-
Expires: July 22, 2011.
See RM 10211.420F in this section for instructions on processing SSN
applications for applicants falling into this category.
See Also:
DHS’s
May 23, 2011 Federal Register notice announcing Haiti’s EAD
extension.
|
|
Honduras and Nicaragua
|
Automatic EAD extension through January 05, 2011, to Honduran or
Nicaraguan non-immigrants whose EADs show:
-
Category: A-12 or C-19
-
Expires: July 5, 2010.
See RM 10211.420F in this section for instructions on processing SSN
applications for applicants falling into this category.
See Also:
|
|
Liberia
|
Automatic EAD extension through September 30, 2010, to Liberian
non-immigrants whose EADs show:
-
Category: A-11
-
Expires: March 31, 2010.
See RM 10211.420F in this section for instructions on processing SSN
applications for applicants falling into this category.
See Also:
DHS’s
March 30, 2010 Federal Register notice announcing Liberia EAD
extension.
|
|
Somalia
|
Automatic EAD extension through March 17, 2010, to Somali non-immigrants
whose EADs show:
See RM 10211.420F in this section for instructions on processing SSN
applications for applicants falling into this category.
See Also:
DHS’s
July 27, 2009 Federal Register notice announcing Somalia EAD extension.
|
Additional non-immigrants, such as Sudanese nationals, also have TPS
designation; however, the designation does not include an automatic EAD
extension. Since no special SSN application instructions apply for these
non-immigrants, we do not include them in this table.
The Department of Justice’s, Virtual Law Library,
TPS
webpage lists which countries’ nationals have TPS or DED
designation and provides links to the Federal Register notices documenting
those designations and EAD extensions.
F. Procedure when an SSN applicant submits an EAD based on an automatic EAD Extension
Follow this procedure only when an SSN applicant matching the
criteria in RM 10211.420E in this section submits an EAD as evidence of
lawful alien status.
1. The EAD expired or will expire within 14 calendar days
If an applicant submits an expired EAD or an EAD that expires within 14
calendar days from the extended expiration date, do the following.
-
Find the applicant’s “Automatic EAD extension
through” date shown in RM 10211.420E in this section.
-
Enter the “Automatic EAD extension through” date in the
EXPIRES field on SSNAP’s Proof of Legal Alien Status screen.
EXAMPLE: On 07/02/2010, a Honduran national files for a replacement
SSN card and submits an EAD showing A-12 and a 07/05/2010 expiration date.
Since RM 10211.420E in this section shows that this group of SSN
applicants’ EADs were automatically extended through 01/05/2011, the
employee enters 01/05/2011 for the EAD’s EXPIRES date.
-
Verify the alien’s status following existing procedures. See
RM 10213.085 and RM 10213.095.
2. The EAD expires more than 14 days in the future
If an applicant submits an EAD that expires more than 14 calendar days in
the future, no special instructions apply. Follow existing procedures.
3. The EAD expired and the automatic EAD extension validity period has expired or expires within 14 calendar days
If an applicant submits an expired EAD and the automatic EAD
extension has expired or will expire within 14 calendar days, follow
RM 10213.300 and advise the applicant to return when he or she receives
the new EAD.
G. Policy for employment authorization by Class of Admission (COA)
The following policies apply to employment authorization by COA.
1. Aliens employment-authorized without specific DHS authorization
The following chart lists, by COA code, non-immigrants authorized to work
in the U.S. without specific authorization from DHS. The
alien’s I-94 showing one of the following COAs has employment
authorization unless otherwise noted. The I-94 will not have the
DHS employment authorization stamp and the alien will generally not
have an EAD.
The visa of the principal alien generally shows the basis for the visa,
e.g. “treaty trader” or an employer’s name, while the
visa of a spouse or child may show an annotation that the person is a
“dependent of the p.a.” (p.a. means principal alien).
For COAs displaying an asterisk (*), the principal alien, spouse,
and child all have the same classification code.
In some instances, the husband and wife are principal aliens when the
classification is E-1 and E-2.
When all family members have the same COA, ask the SSN applicant if he or
she is the family member who is the principal alien, spouse, or the child
of the principal alien.
For COAs displaying a double asterisk (**) (non-immigrant E-1, E-2,
and L-2 classifications), the spouse is also authorized to work without
specific DHS authorization.
When the E-1, E-2, or L-2 spouse applies for an SSN card and does not
submit an EAD as evidence of employment authorization, he or she must
submit, in addition to evidence of lawful alien status, evidence of a
marital relationship to the principal E-1, E-2, or L-1 alien. The evidence
of marital relationship between the applicant and the principal E-1, E-2,
or L-1 alien is a marriage document. The marriage document must indicate
the marriage occurred, either: 1) prior to admission to the U.S. as an
E-1, E-2, or L-2 non-immigrant; or, 2) prior to extension or change of
status to an E-1, E-2 or L-2 non-immigrant.
NOTE: Although aliens listed under a COA in this section are
employment authorized without specific DHS authorization, employers may
still ask for an EAD before the alien can start working.
|
Class of Admission
|
Description
|
|---|
|
A-1*
|
Ambassador, public minister, career diplomat, or consular officer
(principal).
|
|
A-2*
|
Other foreign government official or employee (principal).
|
|
A-3*
|
Attendant, servant, or personal employee of principal A-1, or A-2
(principal).
|
|
E-1*
|
Treaty trader (principal).
|
|
E-1**
|
Spouse of principal E-1.
The alien must submit either:
-
an EAD (Form I-766) showing “A-17” under Category; or
-
evidence other than an EAD that proves the E-1’s lawful alien status
(e.g., I-94) and a marriage document as evidence that he or she is
the spouse of the principal E-1 alien.
|
|
E-2*
|
Treaty investor (principal)
|
|
E-2**
|
Spouse of principal E-2.
The alien must submit either:
-
an EAD (Form I-766) showing “A-17” under Category; or
-
evidence other than an EAD that proves the E-2’s lawful alien status
(e.g., I-94) and a marriage document as evidence that he or she is
spouse of the principal E-2 alien.
|
|
E-3*
|
Treaty trader in a specialty occupation.
|
|
F-1
|
Academic student for on-campus employment and DSO-authorized curricular
practical training. See RM 10211.240.
|
|
F-3
|
Canadian or Mexican national academic student who commutes to school in
the U.S. – for DSO authorized curricular practical training. See
RM 10211.270.
|
|
G-1*
|
Resident representative of recognized foreign member government to an
international organization (principal).
|
|
G-2*
|
Other temporary representative of recognized foreign member government to
an international organization (principal).
|
|
G-3*
|
Representative of unrecognized or nonmember foreign government to an
international organization (principal).
|
|
G-4*
|
Representative of international organization (officer or employee)
(principal).
|
|
G-5*
|
Attendant, servant, or personal employee of principal G-1, G-2, G-3, or
G-4.
|
|
H-1B
|
Worker in a specialty occupation.
|
|
H-1B1
|
Temporary worker in a specialty occupation.
|
|
H-1C
|
Registered nurse.
|
|
H-2A
|
Agricultural worker.
|
|
H-2B
|
Non-agrarian seasonal worker.
|
|
H-2R
|
Returning H-2B worker (worker was previously admitted as H-2B, left the
U.S. temporarily and is returning to the U.S).
|
|
H-3
|
Trainee.
|
|
I*
|
Foreign information media representative (principal).
|
|
J-1
|
Exchange visitor (pursuant to an approved program). See RM 10211.340. An
exchange visitor whose DS-2019 shows the category as
“student,” “student intern,” or
“international visitor” in item 4 of the form must provide a
letter from the program sponsor as evidence of authority to work.
Otherwise, presume the employment authorization is part of the J-1’s
exchange program.
|
|
K-1
|
Fiancé(e) of U.S. citizen.
|
|
L-1
|
Intra-company transferee.
|
|
L-1A
|
Intra-company Transferee Managers and Executives.
|
|
L-1B
|
Intra-company Transferee Specialized Knowledge.
|
|
L-2**
|
Spouse of an intra-company transferee.
The alien must submit either:
-
an EAD (Form I-766) showing “A-18” under Category; or
-
evidence other than an EAD that proves the L-2’s lawful alien status
(e.g., I-94) and a marriage document as evidence that he or she is
the spouse of the principal L-1 alien.
|
|
NATO-1 through 6*
|
NATO officer, representative, or personnel (principal).
|
|
NATO-7*
|
Attendant, servant, or personal employee of principal NATO-1 through 6
(principal).
|
|
O-1
|
Alien with extraordinary ability in sciences, arts, education, business,
or athletics.
|
|
O-2
|
Alien accompanying O-1.
|
|
P-1
|
Internationally recognized athlete or entertainer in an internationally
recognized group.
|
|
P-2
|
Artist or entertainer in an exchange program.
|
|
P-3
|
Artist or entertainer in a culturally unique program.
|
|
Q-1
|
Cultural exchange visitor.
|
|
Q-2
|
Irish Peace Process Cultural and Training Program Visitor.
|
|
R-1
|
Religious worker with a nonprofit religious organization.
|
|
TC
|
Professional business person, United States-Canada Free Trade Act (FTA).
|
|
TN
|
Professional business person from Canada or Mexico, North American Free
Trade Agreement (NAFTA).
|
|
TN-1
|
Professional business person from Canada, North American Free Trade
Agreement (NAFTA).
|
|
TN-2
|
Professional business person from Mexico, North American Free Trade
Agreement (NAFTA).
|
|
Refugee
|
Alien admitted pursuant to section 207 of the Immigration and Nationality
Act (INA).
The I-766 shows “A-3” under Category.
|
|
Asylee
|
Asylee under 208 of the INA.
The I-766 shows “A-5” under Category.
|
2. Aliens Who Require an EAD from DHS Authorizing Employment
The following chart lists, by COA code, non-immigrants authorized to work
only with authorization from DHS. These aliens must submit an EAD.
For COAs displaying an asterisk (*), the principal alien, spouse,
and child all have the same classification code. The visa of the dependent
may show the name of the principal.
EXCEPTIONS:
-
refugee or asylee employment authorization may be shown on the I-94;
-
F-1 employment authorization for curricular practical training (CPT) may
be shown on page 3 of an I-20;
-
J-1 employment authorization when the DS-2019 category is
“student,” “student intern,” or
“international visitor” may be shown on a sponsor's letter.
|
Class of Admission
|
Description
|
|---|
|
A-1*, A-2*
|
Spouse or child of principal A-1, A-2 alien.
The I-766 shows “C-1” under Category.
|
|
B-1
|
Visitor for business who is:
-
a personal or domestic servant accompanying or following an employer
admitted to the U.S. as a non-immigrant.
-
a domestic servant accompanying or following a U.S. citizen employer (the
employer has a permanent home or is stationed in a foreign country and is
temporarily in the U.S.).
-
an employee of a foreign airline and the employee is not a national of the
country of the airline's nationality.
The I-766 shows “C-17” under Category.
NOTE: The instructions in RM 10211.420G.3 in this section apply if
the B-1 alien is not authorized to work under one of the above situations.
|
|
E-3*
|
Spouse or child of principal treaty trader in a specialty occupation.
|
|
F-1
|
Academic student for employment in authorized optional practical training
(provision of law: optional practical training – 8 C.F.R. §
274a.12(c)(3)(i); employment with an international organization – 8
C.F.R. § 274a.12(c)(3)(ii); economic hardship – 8 C.F.R. §
274a.12(c)(3)(iii)).
The I-766 shows “C-3” under Category.
See RM 10211.240 for employment authorization documentation required for
F-1s employed on campus or in curricular practical training (an EAD is not
required for these types of employment).
|
|
F-3
|
Canadian or Mexican national academic student who commutes to school in
the U.S.– for employment in optional practical training.
The I-766 shows “C-3” under Category.
|
|
G-1*, G-3*, G-4*
|
Spouse or child of G-1, G-3 or G-4 alien.
The I-766 shows “C-4” under Category.
|
|
J-2
|
Spouse or minor child of J-1 alien.
The I-766 shows “C-5” under Category.
|
|
K-2
|
Child of K-1.
The I-766 shows “A-6” under Category.
|
|
K-3
|
Spouse of U.S. Citizen.
The I-766 shows “A-9” under Category.
|
|
K-4
|
Child of K-3.
The I-766 shows “A-9” under Category.
|
|
M-1
|
Nonacademic student - for practical training.
The I-766 shows “C-6” under Category.
|
|
M-3
|
Canadian or Mexican national nonacademic commuter student for practical
training.
The I-766 shows “C-6” under Category.
|
|
NATO – 1* through 7*
|
Spouse or child of principal NATO - 1 through 7 alien.
The I-766 shows “C-7” under Category.
|
|
N-8
|
Parent of alien granted permanent residence.
The I-766 shows “A-7” under Category.
|
|
N-9
|
Child of alien granted permanent residence.
The I-766 shows “A-7” under Category.
|
|
S-5
|
Alien supplying critical information relating to a criminal organization
or enterprise.
The I-766 shows “C-21” under Category.
|
|
S-6
|
Alien supplying critical information relating to a counter terrorism
matter.
The I-766 shows “C-21” under Category.
|
|
S-7
|
Spouse or child of S-5 or S-6 alien.
The I-766 shows “C-21” under Category.
|
|
T-1
|
Victim of severe form of trafficking.
The I-766 shows “A-16” under Category.
|
|
T-2
|
Spouse of victim of severe form of trafficking.
The I-766 shows “C-25” under Category.
|
|
T-3
|
Child of victim of severe form of trafficking.
The I-766 shows “C-25” under Category.
|
|
T-4
|
Parent of victim of severe form of trafficking.
The I-766 shows “C-25” under Category.
|
|
T-5
|
Sibling of victim of a severe form of trafficking.
|
|
U-1
|
Victim of Certain Criminal Activity.
The I-766 shows “C-11,” “C-14,” or
“C-18” under Category.
|
|
U-2
|
Spouse of U-1.
The I-766 shows “C-11,” “C-14,” or
“C-18” under Category.
|
|
U-3
|
Child of U-1.
The I-766 shows “C-11,” “C-14,” or
“C-18” under Category.
|
|
U-4
|
Parent of U-1, if U-1 is under 21 years of age.
The I-766 shows “C-11,” “C-14,” or
“C-18” under Category.
|
|
U-5
|
Sibling of U-1. if U-1 is unmarried and under 18 years of age.
|
|
V-1
|
Spouse of a permanent resident.
The I-766 shows “A-15” under Category.
|
|
V-2
|
Child of a permanent resident.
The I-766 shows “A-15” under Category.
|
|
V-3
|
Parent of a permanent resident.
The I-766 shows “A-15” under Category.
|
|
Parolee
|
Alien paroled temporarily into the U.S.
The I-766 shows “A-4” or “C-11” under Category.
|
|
Adjustment applicant
|
-
Applicant for adjustment to permanent resident alien under section 245 of
immigration and nationality act (INA).
The I-766 shows “C-9” under Category.
-
Applicant for creation of a record of lawful admission for permanent
residence pursuant to section 249 of the INA.
The I-766 shows “C-16” under Category.
|
|
Family Unity Program Alien
|
Alien granted voluntary departure under the Family Unity Program.
The I-766 shows “A-13” under Category.
|
|
Temporary Protected Status alien
|
-
Alien granted Temporary Protected Status pursuant to section 244A of the
INA.
The I-766 shows “A-12” under Category.
-
Applicant for Temporary Protected Status pursuant to section 244A of the
INA.
The I-766 shows “C-19” under Category.
NOTE: Also see RM 10211.420E in this section.
|
|
Deportable Alien
|
The I-766 shows “A-10” under Category.
The I-766 shows “A-11” under Category.
The I-766 shows “A-10” under Category.
The I-766 shows “C-12” under Category.
The I-766 shows “C-14” under Category.
The I-766 shows “C-18” under Category.
|
3. Aliens Who Are Not Authorized To Work In The U.S.
The following chart lists, by COA code, temporary non-immigrants not
authorized to work in the U.S.:
|
Class of Admission
|
Description
|
|---|
|
A-3
|
Spouse or child of principal A-3 alien.
|
|
B-1
|
Visitor for business. If the B-1 alien alleges employment as a personal,
domestic servant, or employee of a foreign airline, follow
RM 10211.420G.2. in this section.
|
|
B-2
|
Visitor for pleasure.
|
|
BE
|
Bering Strait Agreement visa-free visitor for pleasure to certain
designated areas of Alaska.
|
|
C-1
|
Alien in transit through the U.S.
|
|
C-2, C-3
|
Foreign Government Official In Transit and dependents.
|
|
C-3
|
Attendant, servant, other personal employee, spouse or child of principal
C-3 alien.
|
|
D-1, D-2
|
Crew member.
|
|
E-1
|
|
|
E-2
|
Child of principal E-2 alien and the child does not have an EAD.
|
|
F-2
|
Spouse or child of F-1 alien.
|
|
G-2, G-5
|
Spouse or child of principal G-2 or G-5 alien.
|
|
H-4
|
Spouse or child of H-1A, H-1B, H-2A, H-2B, or H-3 alien.
|
|
I
|
Spouse or child of principal I alien.
|
|
L-2
|
Child of L-1 alien and the child does not have an EAD.
|
|
M-2
|
Spouse or child of M-1 alien.
|
|
M-3
|
Canadian or Mexican national commuter vocational or non-academic student.
However, see RM 10211.240G.2. in this section if the M-3 alien has an EAD
for optional practical training, which is the only type of work that an
M-3 may be authorized to perform by DHS.
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O-3
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Spouse or child of O-1 or O-2 alien.
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P-4
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Spouse or child of P-1, P-2, or P-3 alien.
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Q-3
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Spouse or child of Q-2.
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R-2
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Spouse or child of R-1 alien.
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TD
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Spouse or child of TN alien.
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WB
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Visitor for business from a visa waiver country.
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WT
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Tourist from a visa waiver country.
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