Immigration Law and the Battle for a Work Permit

Hanes & Bartels June 26, 2012

One of the most common questions presented to immigration attorneys is “how can I just get a work permit?” In other words, can I just apply for a work permit even if I do not qualify for a visa, green card, or other category of relief?

If only it were that easy.

The client’s question is a valid and understandable one. Most immigrants in this country, legal or illegal, want to work, and they want to do it legally. They are simply seeking a way to support themselves and their families.

The current reality of immigration law, however, is that there is no method to request “just a work permit” from the U.S. government. Rather, permission to work is generally tied to some type of visa, permanent resident application, or some other form of application to adjust one’s immigration status.

Not every type of visa or green card application, however, allows the applicant to request a work permit. For example, a person entering the United States on a tourist visa, cultural exchange visa, or most student visas, is not allowed to work while in the country. There are other types of visas (fiancé visas or visas for spouses of permanent residents, for example) that do not automatically allow the recipient to work, but may provide grounds for the recipient to later apply for a work permit after receiving the visa. Other visas, of course, are based upon employment and, therefore, the visa itself grants the right to work to the recipient. Each employment-based visa has its own specific requirements related to the position of the visa recipient, the type of employer petitioning for the visa recipient, the duration of the visa, etc. The trick to navigating through which visa category is appropriate for each applicant is to be able to determine what category matches up with the applicant’s personal situation, including the employment position offered, the applicant’s skills and background, and the applicant’s long-term immigration goals.

It is important to recognize the difference between a visa and a green card (permanent residence), or even citizenship. A visa is simply permission for someone to enter the United States, and to stay for a specific period of time. In most cases, a visa applicant lives outside the United States and seeks to enter the country legally. There are many different types of visas, and as stated above, only some of those allow the visa recipient to work.

Permanent residency, or a green card, is a higher degree of status than a visa in that it allows the recipient to stay in the United States indefinitely as long as the green card is properly renewed every ten years. There are many different ways to obtain a green card, including a petition through family members or one’s employer. However, once the green card has been received, the recipient has permission to work when and where he or she pleases. The same is true for citizenship.

There are a few other immigration situations in which an individual may succeed in obtaining a work permit. For example, if an undocumented immigrant successfully defends a deportation case and wins by cancellation of removal, he or she may be eligible to apply for a work permit. An individual seeking asylum status may also apply for a work permit while waiting for the petition to be approved. Like the other methods explained above, however, each of these avenues for requesting a work permit is tied directly to some other form of relief or a request for adjustment of status.

The United States has been debating the idea of a more expansive temporary worker program for years, and several such programs have been proposed in Congress. Because it is such a hotly debated political topic, however, there is little reason to believe that any such reforms are coming in the near future.

In summary, work permits are available in the United States, but generally only when the applicant qualifies under a specific immigration category, such as a seasonal worker program or other employment-based categories, a pending asylum or permanent resident application, or someone who has prevailed in a deportation case. Once an individual has successfully adjusted his or her status to permanent residency or citizenship, he or she no longer needs a work permit. Work permits are not, however, available independent of an individual’s immigration status, which makes it all the more important to determine whether the individual qualifies for adjustment under any applicable immigration category.