My husband is a Canadian citizen and hopefully will be arriving here on a K-3 in the next 6 weeks or so. Currently he is enlisted in the Canadian military and will separate upon receiving notice of his k-3 interview. Being he has served 21 years and is now reached pensionable status, he can do that by giving 30 days notice of his desire to separate. He has applied for employment with Canada Border Services Agency and as a prior military member( and if qualified for the position) he is eligible for priority hiring in the federal public service sector. Because he will be receiving a pension it is not imperative that he find employment as that pension will be adequate for him to support himself so we most likely will not be applying for EAD when he does his AOS.
Now, the question(s).........

Lets say he does receive an offer of employment from CBSA at any point immediately after leaving Canada but before receiving his green card.
Can he take it or will he require EAD since he will be considered a US resident/tax payer at some point this year?
Is EAD required only for employment within the US or is it a requirement for all US residents regardless of the location of the employment?
Also, what if he obtains employment with CBSA before acquiring/activating his k-3, would he be required to leave his employment once becoming a US resident, until he receives EAD or a GC?

I did discuss this briefly with CIS before we applied for the k-3 and in that conversation the only visas discussed were k-3 and k-1. I asked if it were possible for my husband to work in Canada and she said it would depend on which visa he applied for. In retrospect I wasn't informed enough about the process to ask for clarity and assumed she meant if he got a k-3 he could and with a k-1 he couldn't...........now I don't know what she was implying.

Anyway....hopefully someone can shed some light on this.

I believe you have a more complicated matter than you think. A lot of depends on you personal, financial and work situation.

The medical benefits which he gets as a govt. retiree in Canada would probably be affected by his living in the USA. In addition he should check ifCanada will employ a person that i not a resident of thecountry. That he can find out by checking with Canada.

It might be easier all te way around if you moved to Canada.

Thanks Eds......


As far as his medical benefits and pension are concerned, we have looked into his ability to receive those while living out of the country and that will not be an issue. His insurance is not a provincial health plan.

His obtaining employment with the Canadian govt is not a requirement as much as a desire on my husband's part. It's something he had always wanted to do upon retiring from the CF.....then we met of course and things changed. In some situations it is required to be a resident of Canada to meet the job criteria but not all. Again all of this has been researched.

Our only area where we lack information is whether an EAD/GC is required for employment out of the country,while in the US on a k-3.


I appreciate your words and time Eds

Your topic is very timely for me as well, and I'd like to see if you get more feedback. I just recieved my K3 from Montreal and I'm waiting before moving to find the answer to your question. I am self-employed and do contract work and I have a contract in Canada next month. I have been wondering what the lack of an EAD will mean. Do you need it only to work in the US? If I file a US tax return next year and show self-employment income for work done outside the US while I had no EAD will immigration kick me out? Or is it okay to work outside the US, just not within the US?

My wife has been trying to reach accountants, lawyers, and USCIS for advice, but no one is returning her calls.

Tom

I googled the topic of EAD and foreign employment and according to a paragraph on ImmiHelp, it suggests that EAD is not required if you are authorized to work for a specific employer , such as a foreign government. Now, I'm not sure that applies in our particular circumstances.

For whatever reasons, I'm not holding out much hope for guidance on this board regarding this topic. If I do learn anything I will be sure and keep you informed and I hope you will do the same.

Here's the link to the page where I found the paragraph..........see what you think.
http://www.immihelp.com/immigration/employ...n-document.html

I don't think that there is (or should be) any issues with him doing work outside of the US. He will not be physically present in the USA while working. I did look into this before (kinda), as I had an online side job (Canadian company) and could do it anywhere, however because I would be physically present in the US while working, I was not allowed to do it without EA.

That makes sense.

Thanks Jane I really do appreciate you taking the time to reply

My wife finally got through to USCIS on the phone and they said that as long as I did the work outside of the US I did not need an EAD. If I did the work IN the US then I would have to have the EAD. That fits with what Jane said above, so I've gone ahead and made plans to move for next weekend. In the meantime I am still going to look for one more person to back that opinion. After all, too many on this forum have called the USCIS phone help the "misinformation line".

As to your link to the other site CutienPurg, I think it was referring to a person working in an embassy or consulate that is located in the US. For instance, if I am Canadian and have a job in the Canadian Embassy located in the US, then technically the Embassy is considered Canadian soil and I would then be working 'in' Canada, therefore no EAD would be required.

If I find out anything else this week I'll post it here.

Tom

That's very good news for all of us Tom!!!!!

As I mentioned in my post regarding the link.... I wasn't sure it applied but I'm always one to question when there is opening to do so. Since it said " such as " and didn't limit the options to specific examples , it left me open to wonder. Your example makes absolute sense. The more I chew on the concept of employment authorization , it seems to me that it is a protection mechanism put in place to ensure employers are only hiring workers entitled to do so. Considering you have a SIN, your work in Canada (and my husband's)would be reported and taxed and later claimed on taxes..........which at the end of the day isn't that really what the govt's concern is.


Anyway , I'm very happy for you.............good luck on your move!!!!!

Hi CutienPurg,

I thought I would fill you in on the latest. My wife and I met with a cpa accountant here in Virginia yesterday. He also agreed that the ead was only applicable if you want to work within the U.S. and has no bearing in my situation, and therefore your husband's either. I put additional weight on his opinion because his wife is from Venezuela and he went through the immigration process 7 years ago, and as well he has clients that are Canadian and have business interests in the US.
If your husband decides to continue working in Canada while living in the US, naturally I would encourage you to see an accountant as well, and not just assume that I am correct.

Best of Luck to you:-)

Tom

Tom ,

Thank you so much for getting back with me...............that's really good news for all of us.
My best to you in your endeavors

OFF TOPIC HERE...I JUST HAVE TO SAY I LOVE YOUR BUBBLES PIC...SO CANADIAN..MADE ME LMAO!!! SNICKER...SNICKER...

I really think the best place to get an answer to this question is not on the web or by speaking with an accountant.

A quick consult with a COMPETENT immigration attorney should answer the question.

I have to agree with rebeccajo here, this is a very complex situation and a lawyer should be consulted. For one thing, if your husband works as a border patrol officier while filing AOS, doesn't that mean that he will be leaving the country every day to go to work? Generally leaving the country during AOS is not the greatest idea unless you have a valid visa to do so. Is the K-3 a multiple entry visa that remains valid after you file AOS? I didn't think so personally, but I might be wrong.

14.6)...Does the K3 status change after applying for Adjustment of Status?
A...The K3/K4 status does not change *because* an AOS application has been filed. The K3/K4 status expires on its own, generally after two years. However, after the K3/K4 status has expired, but prior to gaining approval for permanent residency, the status will be a "period of stay authorized by the Attorney General", based on being an Adjustment Applicant who is awaiting a decision regarding an adjustment of status application.

...which means exactly the same thing as a K1 who is adjusting, which means Advanced Parole.

Meaning that if one's adjustment takes longer than two years (yes it does happen) they would need AP to cross the border.

A one-time consult with good competent immigration counsel will probably cost you less than $200 - on the outside. A good investment in my book.

14.8)...My status as K3 is about to expire, and I am still waiting approval of AOS. Is there anything I can do to keep my status?
A..Yes, you can apply for an extension of status with the USCIS (INS). This will enable you to leave the United States and return without needing Advance Parole. It is probably a good idea to extend the K3/K4 status if you plan on being outside the country.

As with renewal of EADs, your application for extension of status as K3/K4 will not be approved if you have never applied for Adjustment of Status, unless you show that your initial I-130 petition is still awaiting approval, or, if the I-130 was approved, that you have applied for an immigrant visa at a U.S. Consulate.





Thanks everyone

It's actually not all that complex. Lots of people on the CAN/US border work in one country while living in another. That's just my take on it, which may be skewed by living on the border all my life and not seeing this as a huge issue. If he is eligible to leave and reenter the US on his K-3 Visa, there shouldn't be any problems.

Yes, but most of those people are not doing it while AOS is pending. This is what makes it difficult. Canadians are used to being able to move freely between the USA and Canada. The fact is once you start getting into the Green Card application process, your ability to do that is taken away unless you have special permission to do so.

CutienPurg, I'm curious as to your source.

http://www.visajourney.com/faq/k3k4visa-aos.html

Very good.

So is it your contention that should AOS become protracted for a K3, that one can simply ask for the K3 to be 'extended'? Thus avoiding filing for Advance Parole?

And even if this is so (which it very well may be) how does that resolve the initial question of legal employment?

I'm not trying to be hard to get along with. I just think this question is beyond the realm of web-research and worthy of legal guidance.

I agree, the answer isn't as simple as it may appear but I also have considered that it may not be as complicated either.

My understanding is that the K-3 can be extended as long as AOS has been filed and the K-3 has not been allowed to expire. If the K-3 expires and one finds it necessary to travel outside of the US before AOS has been approved, I agree with you that AP would be necessary.

That being said, I cannot say honestly how it would address the issue of foreign employment. I suppose my concern with a legal consultation is the uniqueness of the situation. In the definition of the EAD it constantly addresses the issue of employment " in the U.S." not " while in the U.S.. and for me that is the issue at hand.......the wording. I am by no means suggesting a consultation is out of the question or unnecessary but merely posing the concern of " how do we know for sure?". The likelihood of someone having extensive experience with this topic seems low to me.

Just out of curiosity........what are the ramifications to the immigrant for working without authorization?

Ramifications of working without authorization? To what?

My understanding is that if the adjustee is filing to adjust based on a family petition, the unauthorized employment is forgiven. As with anything else in immigration, I imagine this is somewhat subject to the adjudicator's perspective and that old catch-phrase 'totality of circumstance' which is used more than once in the AO's Field Manual. But on it's own, I believe the practice is 'forgiveable'.

The ramifications to the employer are much greater. Fines and possible imprisonment.

The problem with unauthorized employment is our laws put the onus on the employer, who is supposed to ask all new hires to complete the I9 form and collect documentation from non-USC's as to their employment status. Failure to do so can get them into all sorts of hot water. That's why many employers will insist that should an EAD lapse before a renewal is issued, the employee take a hiatus.

So......a Canadian employer would have no requirement to check a Candian citizen's authorization to do work in Canada while living in the US. My biggest concern was the complications working in Canada would cause with his immigration status. Many USC's work in Canada without issue but as you have so often stated........the same rules do not apply when you are only a legal resident.

I'd be wallowing around in tax issues too, if it were me. There may be reciprocity but I'm uncertain.

The more I think about this the more uncertain I am. It may be less complicated than it seems, but I wouldn't bank on it. One shade of gray can turn the entire picture black sometimes.

Ive considered tax issues as well, but then again I go back to the USC working in Canada issue.
The only consistent hangup for me is the EAD and the definition thereof....... is it authorization to work IN the US or work WHILE IN the U.S.? Without a specific " case in point " to go from , my sense is that it will remain a grey area even for the legal sector. I guess it will come down to the thinking of the person adjudacting the case and how well we can explain our intent if the circumstances call for that. Bottom line is, I think it will be a matter of how willing we are to risk it.


**sigh**

I don't know why you feel it would be a grey area for the legal sector. Unless you are unable to determine that competency of the counsel you have hired.

I'm not one for risk-taking with either immigration or my taxes. But that's just me.

I don't know why you feel it would be a grey area for the legal sector. Unless you are unable to determine the competency of the counsel you have hired.

I'm not one for risk-taking with either immigration or my taxes. But that's just me.

It'd be cool to see the US Government try to fine the Canadian Government for hiring a Canadian to work on Canadian soil. Make for a good news headline.

The idea of employment authorization is to make sure that people who are not legally entitled to work in the US are taking jobs from Americans. Seeing as this work takes place outside of the US, in Canada, for a Canadian employer, it in no way violates US employment rules (or immigration laws).

Not so much competency as much as experience. As I stated earlier, I cant imagine this situation is all that common albeit not unheard of. So, without specific experience on the topic it would pretty much come down to the intent of the law vs each person's interpretation of the law, wouldn't you think?

This is the scenario Ive considered;

I consult an attorney, lay out the facts and they , based on limited or no experience, interpret the rule as it is written. Let's say they conclude that " work in the US" means exactly that and we go forward with our "plan". Forward to interview day and the adjudicator interprets the rule as " work while in the US " and deems the employment as unauthorized. Where is our legal leg?


LOLOLOLOLOL


and you know they would try if they thought they could

Lawyers usually don't offer advice just by reading the code. They go by case precedent, personal and peer-based knowledge, and their personal confidence in being able to advocate.

Good ones, anyway.

I think the logical solution would be to apply for EAD as a CYA maneuver.

So putting aside the issue of attorney's, maybe we can debate another angle of this issue, which may be more significant in our situation.

For the sake of debate........
IF he were to obtain employment in Canada, say with CBSA, and IF he were to be ideally assigned to a Michigan shared border post thereby making the commute possible, would he be able to continue working during his adjustment period without or before issuance of EAD
?

There is no doubt that you have a point rebeccajo, and seeing a lawyer would do no harm. As for myself I would prefer to have an ead regardless of where I am working, but unfortunately I'm still waiting for my I-130 to be approved and I can't apply for AOS or the EAD until then (according to USCIS info line). And since I need to work my wife called the info line and they said there was no problem, and that the ead was all about working within the US. And I realize that whether or not to trust the info line is a hot topic all on it's own.

The K3 visa is valid for two years and I understand it can be extended, and as long as it is valid it is a multiple entry visa and should not be affected by the AOS application. A K1 visa is only valid for 90 days and you need to file the AOS so that you are not out of status after the K1 expires. I think the two visas are different enough that we can't use them for comparisons in this instance.

Even if you see a lawyer cutienpurg, I still think you need to see an accountant because there are definite tax implications for working in Canada.

It's interesting how this topic seemed to suddenly generate interest after being so 'idle'. Thanks for everyone's input.

Tom

You might want to go so some searching at the alt.visa.us.marriage-based group BritishExpats group.

The K-3 covers exactly what you want, CP.
Living in the US.
Working in Canada.
Clear to cross the border freely as a K-3.

A US work permit has nothing to do with this. It's not even such an uncommon situation (tho I haven't seen it posted much here). I agree with everything in your post here, except applying for EAD. Do that only if he wants to do the work in the US.

Tom, if you are eager to file for your AOS, you should look into this further.

I believe it is no longer required to have an approved I-130 to file for AOS from a K-3--that is old data.

Thank you Meaux for the link .............I will wade through it:)

The way I saw applying for EAD as a "cover your a$$" thing was , if we're going to spend the money for the lawyer and not have any legal leg in the event they were mistaken ( not that that could ever happen <chortle>), having the EAD as a sort of insurance would alleviate that concern.

Tom , I agree with needing a decent cross border accountant at least for the first couple years until we figure out how to do it ourselves............and we will

Anyway, Im glad this finally generated some interest and decent debate...........Thanks everyone!!!!!

Thanks for the info Meauxna. I tried posting to visajourney and no-one responded, so maybe I'll try britishexpats. I tried searching both sites already with no luck. It would be nice to get all this paperwork over once and for all. I've no interest in waiting any longer than necessary.

Tom