Moving this to a new thread, as this became a seperate, more interesting topic:
My wife and I are chasing the mailman down every day in hopes for her EAD. Her biometrics were way back on 3/27, but we've heard nothing. The case status hasn't changed online.
Unfortunately, we got caught in that trap of the 90 day EAD they give out at JFK (the one that will almost ALWAYS leave a gap in your work authorization). And unfortunately, she happened to find a great job during those 90 days where she had to start right away. So we gambled, and it looks like we're losing. Her 90 day EAD expires in a week, and so will our health insurance. We'll have to go around wearing helmets and pads everywhere we go.
The gap can be anywhere from 1 day (if we get the EAD on May 10, which is still possible) to 3 weeks (if we get an interim one via Infopass on Day 91 from receipt of I-765)
The question is: What's possible during this EAD gap? Can you remain on the payroll and take "vacation" time? Can you show up to work still and just not be paid? Can you still receive benefits? Can you ignore it and pray for the best? What has anyone experienced if you've been caught in this trap?
Full Version: The EAD gap trap
VisaJourney.com > General Family Based Immigration Topics > Working & Traveling prior to getting a Green Card
blehhhh,
Has your wife's employer brought it to her attention that her employment authorization will expire soon and asked her to present evidence of new employment authorization?
Yodrak
Moving this to a new thread, as this became a seperate, more interesting topic:
My wife and I are chasing the mailman down every day in hopes for her EAD. Her biometrics were way back on 3/27, but we've heard nothing. The case status hasn't changed online.
Unfortunately, we got caught in that trap of the 90 day EAD they give out at JFK (the one that will almost ALWAYS leave a gap in your work authorization). And unfortunately, she happened to find a great job during those 90 days where she had to start right away. So we gambled, and it looks like we're losing. Her 90 day EAD expires in a week, and so will our health insurance. We'll have to go around wearing helmets and pads everywhere we go.
The gap can be anywhere from 1 day (if we get the EAD on May 10, which is still possible) to 3 weeks (if we get an interim one via Infopass on Day 91 from receipt of I-765)
The question is: What's possible during this EAD gap? Can you remain on the payroll and take "vacation" time? Can you show up to work still and just not be paid? Can you still receive benefits? Can you ignore it and pray for the best? What has anyone experienced if you've been caught in this trap?
Has your wife's employer brought it to her attention that her employment authorization will expire soon and asked her to present evidence of new employment authorization?
Yodrak
QUOTE(blehhhh @ May 2 2006, 12:01 PM) 
Moving this to a new thread, as this became a seperate, more interesting topic:
My wife and I are chasing the mailman down every day in hopes for her EAD. Her biometrics were way back on 3/27, but we've heard nothing. The case status hasn't changed online.
Unfortunately, we got caught in that trap of the 90 day EAD they give out at JFK (the one that will almost ALWAYS leave a gap in your work authorization). And unfortunately, she happened to find a great job during those 90 days where she had to start right away. So we gambled, and it looks like we're losing. Her 90 day EAD expires in a week, and so will our health insurance. We'll have to go around wearing helmets and pads everywhere we go.
The gap can be anywhere from 1 day (if we get the EAD on May 10, which is still possible) to 3 weeks (if we get an interim one via Infopass on Day 91 from receipt of I-765)
The question is: What's possible during this EAD gap? Can you remain on the payroll and take "vacation" time? Can you show up to work still and just not be paid? Can you still receive benefits? Can you ignore it and pray for the best? What has anyone experienced if you've been caught in this trap?
Yes, they have brought this issue up with her a couple of weeks ago. She responded by saying that she still had some hope that it would arrive in the mail before May 9. Now, that chance is getting slimmer and we need to assume it won't arrive in time and prepare accordingly. She spoke with HR yesterday, and they said they would get back to her, as it seems that they are unsure of what to do as well.
They are desperate to keep her on staff, as there is a shortage of qualified chemotherapy nurses, but being a hospital, I'm sure they will never do anything to bend or break the law.
They are desperate to keep her on staff, as there is a shortage of qualified chemotherapy nurses, but being a hospital, I'm sure they will never do anything to bend or break the law.
I suggest that she talks to the employer about being on unpaid leave for that time. Your benefits will likely continue. If the hospital wants to keep her, they'll wait. I suggest that she does not work during that time, so she can truthfully answer (if asked) "No, I did not work without worh authorization."
QUOTE(kc456 @ May 2 2006, 03:25 PM)
I suggest that she talks to the employer about being on unpaid leave for that time. Your benefits will likely continue. If the hospital wants to keep her, they'll wait. I suggest that she does not work during that time, so she can truthfully answer (if asked) "No, I did not work without worh authorization."
i think i answer this before........yes i would suggest to offer to continue working and instead of being paid get it as vacation time later
QUOTE(Rocio @ May 2 2006, 02:38 PM)
i think i answer this before........yes i would suggest to offer to continue working and instead of being paid get it as vacation time later
This seems a little iffy. Let the employer suggest that (if they want). But I think an unpaid leave is a better solution -- it preserves your spouse's job and benefits while you wait, without having to second guess your decision later.
How could you continue to work but not get paid and that be ok???? that would still be you being empoyed without EAD.....
If it was me I would go and make an infopass appointment and ask your local office what they advise you to do....
IMO
Kezzie
If it was me I would go and make an infopass appointment and ask your local office what they advise you to do....
IMO
Kezzie
Already went for an Infopass yesterday to express concern and ask for advice. The response to all the questions we had was "You have to wait 90 days before we'll give you an interim EAD." and "You can't work without an EAD." Like a parrot, these were repeated no matter what the question was, finally concluded with "NEXT!"
Of course, these are true statements, but we already knew this, and they weren't very helpful or friendly. So it was pretty much a waste of time.
Of course, these are true statements, but we already knew this, and they weren't very helpful or friendly. So it was pretty much a waste of time.
Guess its down to what amount of risks you and your employer are willing to take....
Good Luck with whatever you end up doing....
Kezzie
Good Luck with whatever you end up doing....
Kezzie
blehhh,
So the employer is aware of their responsibility and they are fulfilling their responsibility as they see it. It is their responsibility, they do want to retain your wife, so go with whatever they decide to do. It seems that, if they do have to let your wife go temporarily, they will take her back as soon as they can - it's not as if this will be the end of the line with this employer and she'll have to start looking for a new job when her authorization comes through.
Yes, they have brought this issue up with her a couple of weeks ago. She responded by saying that she still had some hope that it would arrive in the mail before May 9. Now, that chance is getting slimmer and we need to assume it won't arrive in time and prepare accordingly. She spoke with HR yesterday, and they said they would get back to her, as it seems that they are unsure of what to do as well.
They are desperate to keep her on staff, as there is a shortage of qualified chemotherapy nurses, but being a hospital, I'm sure they will never do anything to bend or break the law.
The USCIS staff handled the situation appropriately. They did all they can do, all they are supposed to do.
The decisions lie with your wife's employer and then with your wife.
Already went for an Infopass yesterday to express concern and ask for advice. The response to all the questions we had was "You have to wait 90 days before we'll give you an interim EAD." and "You can't work without an EAD." Like a parrot, these were repeated no matter what the question was, finally concluded with "NEXT!"
Of course, these are true statements, but we already knew this, and they weren't very helpful or friendly. So it was pretty much a waste of time.
Yodrak
So the employer is aware of their responsibility and they are fulfilling their responsibility as they see it. It is their responsibility, they do want to retain your wife, so go with whatever they decide to do. It seems that, if they do have to let your wife go temporarily, they will take her back as soon as they can - it's not as if this will be the end of the line with this employer and she'll have to start looking for a new job when her authorization comes through.
QUOTE(blehhhh @ May 2 2006, 02:01 PM)
Yes, they have brought this issue up with her a couple of weeks ago. She responded by saying that she still had some hope that it would arrive in the mail before May 9. Now, that chance is getting slimmer and we need to assume it won't arrive in time and prepare accordingly. She spoke with HR yesterday, and they said they would get back to her, as it seems that they are unsure of what to do as well.
They are desperate to keep her on staff, as there is a shortage of qualified chemotherapy nurses, but being a hospital, I'm sure they will never do anything to bend or break the law.
The USCIS staff handled the situation appropriately. They did all they can do, all they are supposed to do.
The decisions lie with your wife's employer and then with your wife.
QUOTE(blehhhh @ May 2 2006, 04:20 PM)
Already went for an Infopass yesterday to express concern and ask for advice. The response to all the questions we had was "You have to wait 90 days before we'll give you an interim EAD." and "You can't work without an EAD." Like a parrot, these were repeated no matter what the question was, finally concluded with "NEXT!"
Of course, these are true statements, but we already knew this, and they weren't very helpful or friendly. So it was pretty much a waste of time.
Yodrak
It took Claudeth about 45 days to get her EAD after the biometrics and a total of 75 days from receipt of the packet.
Leave without pay seems to be a reasonable solution in this situation, IMO.
Hmm, so okay, here's what happened. My wife went to HR at the hospital and they got one of their in-house immigration attorneys to look into the issue.
He came back and said that she'd be okay to work until June 1 (day 90 from NOA1 of the EAD application). How convenient, because on June 2, she'd be eligible for an interim EAD through Infopass since that would be Day 91. Therefore, any chance of a gap is now gone.
I wanted to ask about the legal reasoning behind this, but hesitated because it might just be a wink, wink, situation and didn't want to shake things up.
I'd be curious if anyone knows if this is really legal and why. Also, should my wife challenge the decision based on our understanding (or mis-understanding) of the law in order prevent any trouble in the future? It might cost a few weeks in missed pay, but it would be better to lose that than risk the greencard.
He came back and said that she'd be okay to work until June 1 (day 90 from NOA1 of the EAD application). How convenient, because on June 2, she'd be eligible for an interim EAD through Infopass since that would be Day 91. Therefore, any chance of a gap is now gone.
I wanted to ask about the legal reasoning behind this, but hesitated because it might just be a wink, wink, situation and didn't want to shake things up.
I'd be curious if anyone knows if this is really legal and why. Also, should my wife challenge the decision based on our understanding (or mis-understanding) of the law in order prevent any trouble in the future? It might cost a few weeks in missed pay, but it would be better to lose that than risk the greencard.
do not worry about it. All I can give is my own experience and from that I can confirm there is honestly nothing to worry about.
She can "volunteer" to continue "working" as a nurse there.... if she is not receiving any pay she is actually not working just doing a volunteer job and still manage to keep her position.... the hospital may write a letter specifying that she is just a volunteer and when her EAD arrives she can be back on track again...
lore,
Not true.
At least she can't continue doing her present nursing job on a volunteer basis. Perhaps she could be a 'Candy Striper' in the interim.
Yodrak
She can "volunteer" to continue "working" as a nurse there.... if she is not receiving any pay she is actually not working just doing a volunteer job and still manage to keep her position.... the hospital may write a letter specifying that she is just a volunteer and when her EAD arrives she can be back on track again...
Not true.
At least she can't continue doing her present nursing job on a volunteer basis. Perhaps she could be a 'Candy Striper' in the interim.
Yodrak
QUOTE(lore @ May 3 2006, 03:01 PM)
She can "volunteer" to continue "working" as a nurse there.... if she is not receiving any pay she is actually not working just doing a volunteer job and still manage to keep her position.... the hospital may write a letter specifying that she is just a volunteer and when her EAD arrives she can be back on track again...
The thing is: The immigration lawyer working for the hospital says, it's okay for her to keep working during "the gap." No change in pay, employee status, benefits, etc. Work as usual until June 1, after which they will need to see other evidence of work authorization.
Is this really legal or is the hospital lawyer saying this because they are short-staffed? As far as we're concerned we're following what the lawyer says. However, if he happens to be wrong (and I don't understand why he's right), could this affect our AOS in the future?
Is this really legal or is the hospital lawyer saying this because they are short-staffed? As far as we're concerned we're following what the lawyer says. However, if he happens to be wrong (and I don't understand why he's right), could this affect our AOS in the future?
Many people (anonymous and otherwise) work through the EAD 'gap' and do not run into trouble with their AOS. Indeed, the UCSIS even say that AOS cannot be denied on the basis of working without EAD.
Whether or not you want to do that or if your employer will permit it are other matters. Some people show their employers this and their employers accept it:
Different people interpret the rules differently & act differently based on that.
Whether or not you want to do that or if your employer will permit it are other matters. Some people show their employers this and their employers accept it:
QUOTE(http://www.usvisanews.com/i9-compliance.shtml)
Work authorization is automatically extended for 240 days for certain nonimmigrants who have filed an application for an extension of their work authorization. An INS receipt for a timely filed extension application may be used as proof of continuing work authorization for a period of 240 days. An employer must accept such a receipt as proof of continuing work authorization.
If an employee is unable to provide a required document within three business days of her or his hiring, the employee may present a receipt for the application for a replacement document within three business days of her or his hiring, but must present the required document within 90 days of her or his hiring. This rule does not apply when an employer reverifies employment authorization for current employees.
If an employee is unable to provide a required document within three business days of her or his hiring, the employee may present a receipt for the application for a replacement document within three business days of her or his hiring, but must present the required document within 90 days of her or his hiring. This rule does not apply when an employer reverifies employment authorization for current employees.
Different people interpret the rules differently & act differently based on that.
blehhh,
It's the employer who bears the risk of penalty here, if an issue develops over this. Your wife gets forgiveness with regard to her AOS as the wife of a USC.
Yodrak
The thing is: The immigration lawyer working for the hospital says, it's okay for her to keep working during "the gap." No change in pay, employee status, benefits, etc. Work as usual until June 1, after which they will need to see other evidence of work authorization.
Is this really legal or is the hospital lawyer saying this because they are short-staffed? As far as we're concerned we're following what the lawyer says. However, if he happens to be wrong (and I don't understand why he's right), could this affect our AOS in the future?
It's the employer who bears the risk of penalty here, if an issue develops over this. Your wife gets forgiveness with regard to her AOS as the wife of a USC.
Yodrak
QUOTE(blehhhh @ May 3 2006, 06:09 PM)
The thing is: The immigration lawyer working for the hospital says, it's okay for her to keep working during "the gap." No change in pay, employee status, benefits, etc. Work as usual until June 1, after which they will need to see other evidence of work authorization.
Is this really legal or is the hospital lawyer saying this because they are short-staffed? As far as we're concerned we're following what the lawyer says. However, if he happens to be wrong (and I don't understand why he's right), could this affect our AOS in the future?
I may be wrong but I thought this verbage only applied when one has an EAD that was applied for thru the AOS process. I dont think this applies to someone that got a Temp Work Authorization from JFK. Could someone please clarify this for me?
Thanks
kathy
[quote=http://www.usvisanews.com/i9-compliance.shtml]Work authorization is automatically extended for 240 days for certain nonimmigrants who have filed an application for an extension of their work authorization. An INS receipt for a timely filed extension application may be used as proof of continuing work authorization for a period of 240 days. An employer must accept such a receipt as proof of continuing work authorization.
If an employee is unable to provide a required document within three business days of her or his hiring, the employee may present a receipt for the application for a replacement document within three business days of her or his hiring, but must present the required document within 90 days of her or his hiring. This rule does not apply when an employer reverifies employment authorization for current employees.[/quote]
Different people interpret the rules differently & act differently based on that.
[/quote]
Thanks
kathy
[quote=http://www.usvisanews.com/i9-compliance.shtml]Work authorization is automatically extended for 240 days for certain nonimmigrants who have filed an application for an extension of their work authorization. An INS receipt for a timely filed extension application may be used as proof of continuing work authorization for a period of 240 days. An employer must accept such a receipt as proof of continuing work authorization.
If an employee is unable to provide a required document within three business days of her or his hiring, the employee may present a receipt for the application for a replacement document within three business days of her or his hiring, but must present the required document within 90 days of her or his hiring. This rule does not apply when an employer reverifies employment authorization for current employees.[/quote]
Different people interpret the rules differently & act differently based on that.
[/quote]
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