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Can Employers Get Work Visas for Immigrant Workers Who Are Already Here?

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JV

Reviewed & verified by A. Jason Velez, Esq.*

Founding Attorney, 1LAW · Last reviewed September 23, 2026

Legal Inquiry

Consumer Legal Issue

How can we go about getting work visas for immigrant workers who are already here?

Are there ways to get a work visa for someone who is already here working?

Attorney Answer

A job offer or a filed petition does not turn unlawful presence or unauthorized work into status, and a work permit is not status either. Start with an individual assessment by immigration counsel of how each worker entered, what status (if any) they hold now, any prior violations, and what relief exists.

The rules that govern the answer: a change of nonimmigrant status is available only to someone who has maintained status (8 C.F.R. § 248.1(b)). Unauthorized employment bars adjustment of status under 8 U.S.C. § 1255(c)(2). The employment-based exception in § 1255(k) forgives up to 180 days of status or work violations, but only for a worker who is present 'pursuant to a lawful admission' - a worker who entered without inspection cannot use it (Sanchez v. Mayorkas: a grant of status 'does not come with a ticket of admission'). The Ninth Circuit, which governs Arizona and Nevada, holds that an employment authorization document is not 'lawful status' for § 1255(k) (Xiao Ma v. Sessions). Leaving the country to consular-process can trigger the three- or ten-year bars in 8 U.S.C. § 1182(a)(9)(B).

An EB-3/PERM case can be a long-term path for a worker who is eligible to adjust or to consular-process, but it does not authorize work while pending. Do not tell a worker to leave, and do not keep employing someone you know lacks authorization on the strength of a sponsorship plan (8 U.S.C. § 1324a(a)(2)).

Cases Cited

Published decisions relevant to this issue, provided as legal background rather than advice about any particular case.

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Federal Immigration Resources

Frequently Asked Questions

Can an employer sponsor a worker who is already in the U.S. without status?

Filing a petition or making a job offer does not turn unlawful presence or unauthorized work into status. Whether a particular worker can use a change of status or adjustment of status depends on how they entered, whether they maintained status, and any prior violations, so each worker needs an individual assessment by immigration counsel.

Does a work permit count as lawful status for a green card?

No. The Ninth Circuit, which covers Arizona and Nevada, has held that an employment authorization document is not lawful status for the 180-day exception in 8 U.S.C. § 1255(k), and that exception is available only to a worker who was lawfully admitted.

Is it safe for a worker to leave the U.S. and apply from abroad?

Not without advice. Leaving the country to consular-process can trigger the three-year or ten-year unlawful-presence bars in 8 U.S.C. § 1182(a)(9)(B), so an employer should not tell a worker to depart as part of a sponsorship plan.

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