UNAUTHORIZED WORK
Q: Do I have to disclose my unauthorized work on the Labor Certification?
The Department of Labor released a new version of the Labor Certification form that is effective starting June 1, 2023. The new version of the LC only asks for work history if it is relevant to the job opportunity.
Because EB-3 unskilled positions do not require any relevant work experience, we do not need to list prior work history in the LC. We can leave the work history section blank on the LC.
However, even though disclosing prior work history is not required on the LC, you may need to disclose your prior work history later in the green card application process (i.e., after the LC is approved). It is your responsibility to let us know if you have accrued more than 180 days of working without authorization in the U.S. and/or unlawful status since your last entry. An attorney can then review whether there will be immigration consequences after the LC approval. If you do not notify us that you have more than 180 days of working without authorization or unlawful status in the U.S., this could impact your green card strategy in the future.
Q: After the LC is approved, do I have to disclose my unauthorized work at the green card stage?
Yes. The green card application requires you to disclose employment history, including any unauthorized work, for the last 5 years leading up to the Adjustment of Status/Consular filing.
Q: What activities may be considered unauthorized work?
TAXES: It doesn’t matter if you did or didn’t pay taxes, if you did work without authorization, then its unauthorized work and will be counted as such. Even if the IRS doesn’t report it to USCIS, it is still unauthorized work.
PAID IN CASH: It doesn’t matter if you were paid solely paid in cash. Unauthorized work must and will be reported by BDV Solutions and our partner law firms.
VOLUNTEERING: While you are permitted to volunteer, it is generally not allowed that you can volunteer in a position that should be filled by a paid worker.
INVESTMENTS: While foreign nationals are allowed to make financial investments to generate capital (such as in stocks or bonds) and engage in passive investments, they are NOT permitted to play an active role in the day to day running of a business or active Forex trading.
WORKING REMOTELY IN U.S FOR FOREIGN COMPANY: Working remotely in the U.S. for a foreign company could be considered unauthorized work. If you engaged in productive work, such as managing accounting, hiring, coding, business development, etc. for a foreign company while in the U.S. without work authorization, this is unauthorized work. If you are only passively involved as an investor, meaning you were not engaging in productive work for the company, then this is not unauthorized work.
Q: What happens if I have more than 180 days of unauthorized work?
If you worked without authorization for over 180 days since your last entry into the U.S. but have maintained valid status (i.e. your I-94 has not expired or you have a timely filed extension), you have two options:
Option 1: You will need to Consular process, meaning that once your Labor Certification (LC) and I-140 immigration petition are approved, you will need to apply for the green card from outside the U.S.
Option 2: If you do not want to Consular process, you may be able to fix the unauthorized work issue by departing the U.S. and then re-entering. You will need a valid passport and a valid visa stamp to re-enter the U.S. after international travel. Once you re-enter the U.S., the unauthorized work "clock" will reset, meaning that you will be able to apply for the green card from within the U.S.
Please note that this is general information and is not legal advice. For either option above, you will need to first obtain an approved LC. We will default to Consular processing if you have more than 180 days of unauthorized work. Once your LC is approved, our outside counsel will discuss both options with you in more detail, to provide legal guidance on whether you should Consular process or if you can depart and re-enter the U.S. to reset the clock based on your unique case.