Which Foreign Workers on Nonimmigrant Visas Don’t Need EAD Work Permits
Some workers can proceed with their I-94 as their only proof of employment authorization.
Whether you’re an employer or a worker coming to accept a job in the U.S. on a nonimmigrant visa, you may be confused by hearing of cases in which noncitizens must present an “Employment Authorization Document” or “EAD” in order to start work. Indeed, there is a small, plastic photo-identity card by this name, which immigrants in many situations must obtain from U.S. Citizenship and Immigration Services (USCIS) and use as evidence of their right to work in the United States.
Not all nonimmigrants, however, need an EAD (often called a “work permit”). In fact, the immigration regulations (at 8 C.F.R. § 274a.12(b)) specifically list classes of nonimmigrants who are authorized to work for a particular employer but who need not apply for an EAD.
List of Nonimmigrants Who Don’t Need an EAD
The regulations name the following:
- Foreign government officials (A-1 or A-2) and their employees (A-3).
- Foreign government officials in transit (C-2 or C-3).
- Treaty traders or investors (E-1 or E-2) and E-2 CNMI Investors employed in the Commonwealth of the Northern Mariana Islands for a qualifying entity.
- F-1 students seeking on-campus employment or curricular practical training (internships, cooperative training programs, or work-study programs). Curricular practical training (part-time or full-time) will be authorized by the Designated School Official on the student's Form I-20, with no endorsement from USCIS needed.
- Students (F-1) who apply for an extension of their STEM Optional Practical Training (up to 24 months as of 2016) before their existing EAD expires, while they are awaiting a USCIS decision, but not for more than 180 days.
- Students (F-1) in between the expiration of their OPT status and the beginning of their H-1B status (the so-called “cap-gap extension”).
- Representatives of international organizations (G-1, G-2, G-3, or G-4) and their personal employees (G-5).
- Temporary workers in a specialty occupation, agricultural workers, nonagricultural seasonal workers, and trainees (H-1, H-2A, H-2B, or H-3).
- Information media representatives (I).
- Exchange visitors (J-1).
- Intracompany transferees (L-1).
- Aliens with extraordinary ability in the sciences, arts, education, business, or athletics (O-1), and personnel who accompanying them to assist in a specific event or performance. (O-2).
- Athletes, artists, or entertainers (P-1, P-2, or P-3).
- International cultural exchange visitors (Q-1).
- Religious workers (R-1).
- NATO officers, personnel, and staff employees (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6), and their attendants, servants, or personal employees (NATO-7).
- NAFTA visitors engaged in business activities at a professional level (TN).
Providing Evidence of Right to Work
How do EAD-exempt workers prove their right to work in the United States? Their primary document is the arrival and departure record, Form I-94, that Customs and Border Protection creates on their behalf upon their U.S. entry.
The I-94 typically provides only the date of entry, the visa class (e.g. H-1B), and the date by which the person must leave the U.S. or apply for an extension of stay. With the online automation of I-94s, the immigration officer now may make a handwritten annotation next to the arrival stamp in the passport stating the employer for which the nonimmigrant may work and any employment restrictions, such as the designated worksite location. For information on obtaining a paper copy of your I-94 (if you did not receive one upon U.S. entry), see No More Paper I-94s at Airports and Seaports as of April 26, 2013 and Having Trouble Downloading I-94 From CBP? What to Do.
Because people in the above-described categories have an “employer-specific” work authorization, however, they do not enjoy one of the advantages that noncitizens with EADs do: They cannot simply switch jobs and use their existing work authorization. They may work only for the employer who petitioned them for a nonimmigrant visa. Any change in employment conditions usually requires the employer to file an amended petition with U.S. Citizenship and Immigration Services before the change takes effect.