If your AOS is pending, you are not out of status or in violation of any immigration laws.

maybe i need to clarify. i recognize pending status is just that - pending AOS. I also recognize however that really ISNT a status which could be confusing for a trooper.

back to the original post i was replying to ... traffic violations may not be a deportable offsense per se, however they are used as a means to an end by way of troopers given basic instructions. thats the only point i was trying to make.

Ok Geo. You need to read the entire thread about the traffic violations. As I explained further down in it, the point of my statement about 'breaking a law' and 'being deported' was made to draw an analogy only.

That analogy being that until one has a greencard, you are not protected by the most basic rights our constitution guarantees. My statement was a VERY BROAD comment about that and that only. Sure, it was incorrect as regards a traffic violation. But it wasn't incorrect in the context of where I was trying to lead the conversation.

You are going to have to become more familiar with my style of 'teaching' and 'discussion' on here. Lots of my comments are designed to make the others in the thread think. They aren't meant as some edict from on high.

I can handle being called 'incorrect' if it caused somebody to open up their brain and think about the issues at hand.

Well said RJ, and thank you.

If I may add, correct me if I am wrong. But you still need to mind your P and Q's until you are a citizen. Although having the green card does afford you a little leeway, I would be cautious until the immigrant becomes a citizen.

This will probably raise some hackles, but hey i willing to take it.

This was never supposed to become a referendum on the quality of your posts but, since it continues to come up, here it goes. Before you take it upon yourself to "educate" others, especially in such a rude and disrespectful (you just told dr_lha in this thread "what the hell is your problem" when he had done nothing to provoke such a reaction) and pompous manner, you may want to first have some knowledge to share. None of us are infallible, so I do not see a problem with you, I or anybody else making honest mistakes. What is troubling, however, is just how many false, baseless and profoundly misleading posts you have made in this forum and then personally attacked posters who have tried to point out and correct your mistakes.

I did review the traffic violations thread. There is absolutely NO ANALOGY between the due process rights of aliens at traffic stops (they have FULL DUE PROCESS RIGHTS when it comes to those charges) and the somewhat limited due process rights that they have at immigration proceedings. Further, as an alien, you are generally entitled to FULL DUE PROCESS RIGHTS if you are charged with a criminal non-immigration violation. The reasons that some people do not always have their full due process rights in immigration proceedings are complicated and do not always have anything to do with the fact that you are an alien. Quite often, it is the nature of the proceedings rather than the citizenship status of the person that affects due process rights. For instance, even as a USC, you have very few if any due process rights to contest civil contempt charges and can stay in jail almost indefinitely. So, in the traffic violations thread, you've drawn profoundly false and misleading analogies, missed just about every issue and compounded all those problems by the pompous and condescending tone.

Now, in this thread, besides an uncalled for personal attack on dr_lha whose post was certainly logical and compelling (regardless of the fact that you may disagree with his conclusion), you somehow attempted to justify your attack by referring to "totality of circumstance." Let me tell you, "totality of the circumstances" is a specific test that, in this context, has absolutely NO BEARING and NO APPLICABILITY to this discussion. In other threads, you continue to use terms such as "reasonable man" that similarly have absolutely nothing to do with those discussions. Again, why even use terminology that has very specific and well defined legal meaning and applicability when you have no idea what it means and in what circumstances it is applied?

I sincerely apologies to all the readers of this post since this has very little if anything to do with questions asked by the OP. Rebeccajo seems like a very nice person and I genuinely hope that her husband's unacceptable wait in FBI's name check hell hole comes to an end soon. At the same time, her husband's plight is hardly an excuse for the pompous tone and for profoundly wrong and baseless statements she's made all over this board.

Geo, I have addressed my comments with dr_lha. Both in this thread and in PM.

I've been here a long time. That doesn't make me correct all the time. Far from it.

I can't change the way I express myself to suit you. A lot of my posts are wonderings of mine. If they don't make sense to you - well then sorry.

"Totality of circumstance" as I use it is not legal jargon. It's a term from the adjudicator's field and as I have understood it, it allows them broad discretion. It used to be referenced frequently here on VJ by some of the more seasoned members when referring to how seemingly insignificant bits and pieces add up.

There is supposed to be due process for immigrants under UN charters. Our constitution is written for citizens. You can see the gray area if you look closely.

Most immigration journeys go smoothly and without issue. It's a small percentage that don't. I would hate to see anyone in this community become a part of a difficult journey. If there are small things such as applying for EAD that one can do to help insure a smooth journey I don't see the point in debating why it's 'ok' not to apply.

Geo,

While i am not here to defend RJ, nor have I read he post you two are referring to. I would like to make a suggestion, it really does not get you anywhere to attack or completely debase someone. It really only makes you look vindictive.

Secondly, why are you here? Where are you or your spouse in the process? I know this might seem out of place but we are all in frustrating process and rely upon each other. If would come across better if people knew you were in with us as opposed to be a lurker.

Its not illegal to work on a K1 without a stamp on the I-94. You will just have a hard time getting a good job because an employer must meet I9 form requirements to empoly someone. And K1 wont satisfy that, however it is legal to work on a K1 without the stamp.

The adjudicator's field manual is NOT a legal or a substantive document that stands on its own. It is simply a summary of all the statutory, case law, regulatory and administrative rulings on the issue. So, the terminology used in the AFM comes DIRECTLY from those rulings. Again, the AFM and those rulings outline specific circumstances when the "totality of the circumstances" test is applied to each situation, define the people authorized to apply it and provide various limitations on their ability to do so. The fact that the "totality of the circumstances" test is used in one well defined immigration situation does NOT mean that it is used in the entire immigration context. The way you attempted to use the term "totality of the circumstances" in this thread made absolutely NO sense, which further compounded the fact that you engaged in an unprovoked personal attack on a poster. The same goes for the concept of "reasonable man" that you like to throw around this board as well as many other terms.

For some reason, you fail to understand to fact that the terms that you are using are all terms of art with a well defined legal scope and applicability. So, you continue to misuse them and throw them around in situations where they have no bearing or applicability even though the same problems with your posts were thoroughly explained to you several months ago in another thread (I can't link it right now since VJ is having server issues).

Please stop obfuscating the issues with all these "gray areas" talk. There are NO gray areas in the context of traffic violations and the aliens' ability to take advantage of their full due process rights to contest those charges. The courts have previously examined these issues and have ruled on them pretty unequivocally.

I'm actually kind of curious if its actually illegal to work in this country if you are legally present on any visa? From what I can see, Employment authorization makes it legal to employ someone. If you employ someone without EAD then you, the employer, are breaking the law. Most cases where ICE bust places where illegals are working, they are actually illegal aliens, i.e. people who EWI, rather than people legally present in the USA. When ICE busts them they usually bust them for being illegal aliens, not for not having a work permit.

We know that USCIS cannot currently punish Green Card applying spouses of USCs for working illegally, but what I'm not clear on is: Is someone who is working without an EAD actually breaking any law themselves?

I'm still trying to verify the answer through official sources, but on immigration.com it says the following about EAD in their FAQ:

I know. That's what I wonder sometimes too.

I wonder if you aren't not breaking a law...but perhaps putting yourself in a situation where a future immigration benefit could be denied?

Which is precisely what I am wondering and were I the immigrant, I would not even go down that road. If they were going to deport a guy for firing a gun to scare off a robber....what would they do if you worked during a lapse. Again, this is a road that I would not go down. To each, his or her own decision is to be made.

I found this: source and if anyone can explain it in layman's terms, it might have the answer.

It says: [on adjusting status, as per the Immigration and Nationality act]


I *think* it says that someone who works without permission (for more than 180 days?) is not allowed to adjust status. Then again, I find the language practically incomprehensible so there's a chance it doesn't say that at all.

The USCIS website puts the onus on the employer for making sure their employees are legal to work: "U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the United States." [source]

It also says that the employer is not punished if the employee was taken on in good faith but once they (the employer) is told that someone is illegal, the employer is then responsible for ceasing their employment. I so far have not found the words "it is illegal to work without permission in the USA" - but that doesn't mean it isn't, it just means I haven't found it yet.



I also looked up "naturalization" to see if there was anything there, and it says that you have to be of good moral character [source] but that, among others, lying or fraud (or drunk driving [source]) will bar you from qualifying to be naturalized. It doesn't say working without permission but that might be grey area speak for fraud since fraud may technically include 'working without permission'.

If anybody has a clear yes or no answer to whether it is illegal to work without permission, let us know. The above is the best I can do and, even then, I am sticking with "maybe".

Thats only for people getting Green Cards based on employment. If you're married to a USC there's a specific exemption in the INA that means that USCIS cannot deny AOS because you worked illegally.

So does that mean there isn't any point applying for an EAD because they will overlook it anyway? Sounds like a gamble to me...

This is the point I made earlier, yes. In a perfect world all employers would know the law regarding I-9s and that law would be enforced, meaning EADs would be necessary to work. Sadly the world isn't perfect.

Here is the relevant section of the INA, which describes who will be denied AOS, the bit in brackets in the relevant portion for us.


This is the part of the law that forgives overstay or illegal work if you are married or related to a USC.

Title 8: Aliens and Nationality
PART 214—NONIMMIGRANT CLASSES

§ 214.1 Requirements for admission, extension, and maintenance of status.

(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)( of the Act as a temporary visitor for pleasure, or section 101(a)(15)© of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)©(i) of the Act.

OK, so working illegally means that you go "out of status" it would appear. However the INA doesn't allow USCIS to hold time "out of status" against you, so does it really matter?

Essentially I guess what you're quoting allows UCSIC/ICE to deport you for working illegally if you're on a non-EA visa. That's the closest I've seen to stating its actually illegal to work if you're not EA. However can you be deported while AOS is pending?

Duh.......I dunno. I know I dug and dug one night a few weeks ago into some clarification about EAD's lapsing and subsequent renewal, and I couldn't find anything that I considered conclusive saying it was OK to work without one. I mean - the penalties to the employer would be the same - but you have that same old caveat that working without authorization is forgiven because of the family relationship.

As a K1 adjustee, you don't really have status a defined status. I guess if they wanted too, they might be able to say you violated your K1 status by working without proper documentation?

I think what we've just done is shown why lawyers say immigration law is so complex because of its layers and because of its different immigrant categories.

its so nice to see you playing well together.

This may very well be the reason they want to remove the EA status from K1.

That would make all of this conjecture moot.

Theoretically, if we take this assumption, a K1 would just need to get someone to hire them and all would be forgiven. Provided the employed wanted no further proof than the initial proof provided.

Hee hee......we know how to kiss and make up..........

As far as getting rid of the temp EAD, I think that's a contemplation in order to encourage people to get their AOS filed. I kinda feel that way because of the announcement that when fee increases kick in, AOS will come with an EAD and AP automatically.

All of these issues would be solved if the US government actually spent some time enforcing the rules with employers as to who you can hire. Sadly it seems building a fence is more important than actually spending time rules already in law that would do much to stem the tide of illegal workers in the USA.

unfortunately the problem is more systemic than that. I do not know if this is right forum to be going down that road.

Yeah, lets not go off topic.

Okay, before I start this, I realize that USCIS / INA stuff "trumps" SSA, but apropos of anything else, this is fairly explicit:

RM 00203.500 Employment Authorization for Nonimmigrants (https://s044a90.ssa.gov/apps10/poms.nsf/lnx/0100203500)

"Required evidence for employment authorization is either a Form I-94, Arrival/Departure Record, showing a class of admission that indicates the person can work without specific DHS authorization (RM00203.500C.1.) or an employment authorization document (EAD) (Form I-766 or I-688B)."

"1. General - Evidence of Employment Authorization

Employment authorization for nonimmigrants can be determined by:

* the alien's class of admission code as shown on the I-94 (the non-immigrant classifications shown on the I-94 with employment authorization inherent in status are listed in RM 00203.500C.1.); or"

...

"NOTE: DHS does not issue EAD cards to aliens lawfully admitted for permanent residence or nonimmigrants whose work authorization is incident to their class of admission."

"1. Aliens Work Authorized Without Specific DHS Authorization

The following sections list nonimmigrants, by alien class of admission codes, who are authorized to work in the U.S. without specific authorization from DHS. The person’s I-94 will not have the DHS employment authorization stamp and the alien will generally not have an EAD. "

"K-1 Fiancé(e) of U.S. citizen"

That's pretty specific, from SSA's perspective - that within the first 90 days you need NOTHING, no EAD, other than your I-94 K-1 stamped to be able to work in the US.

In fact, whilst most people don't consider the interim EAD (because processing times are almost always above 90 days, rendering the concept moot), SSA specifically states that DHS won't issue one if you're K-1, anyway.

So round and round we go like a cat chasing its tail.

Achromatic, I believe what you have given us here is the SS interpretation to its employees as to why it is OK for them to issue a Social Security number to a K1.

It's not an interpretation of whether or not a K1 who worked without specific DHS authorizaiton will be able to adjust status after their immigrant visa has expired.

For final "closure" (ha, ha) of this topic, I want to express the end result of my experiences, as just posted to another thread:

"

As I mentioned, it is documented, in procedure/law, not just subject-to-opinion, that illegal overstay or unauthorized employment can NOT be used as the grounds for the denial of Adjustment of Status, or when applying for Naturalization (though this may change).

You can be sure, though, that if either comes to the attention of USCIS/DHS, your next appointment / interview with them will spend a fair amount of time discussing your knowledge of the infraction you committed, and how complicit you were therein.

Again, however, if the adjudicating officer chooses to deny your application, this can NOT be the reason, though you might face a far more tight interrogation on other aspects of your relationship as a result thereof.

I am going to go out on a limb and say that I worked without authorization, unknowingly. I am also going to say that I did continue to do so after I received advice that I had been doing so.

I am also going to say this, and this is one thing that a lot of people here will caution against, as a general rule.

My partner is, or was at our AOS application, a student, that I was supporting. In or around that time, I started questioning whether K-1 Authorization was actual Employment Authorization, and the consensus was that it was not, that, though eligible, I would still have to apply.

I filed AOS with a joint sponsor, my fiance's mother.

I filed documents showing that I had been working, showing my income and assets as gained in the US, through unauthorized work.

The end result:

We got RFE'd.

One (of the five) pages (the others were for further proof of my joint sponsor's citizenship and tax info), stated that if I wished to use my income as part of this support statement, I had to show valid employment authorization, and had not done so.

Given that data matching, etc, etc, common sense re "EADs not processed within the initial 90 day K-1 period", etc, etc, that was made saying "You aren't authorized to work, so we cannot count any income you've claimed".

I had my AOS interview on Thursday.

What mention of this was made?

NONE.

We were approved based on the joint sponsor income and evidence of a genuine relationship. I think my reply to the RFE even mentioned that there was "no authorization document that could be supplied, so please continue our application without reference to this" (honesty at that point, knowing I'd screwed up, being the best policy).

Again, NO mention made of this.

May things change? Of course. This is not advice. This is my experience, that I can provide documentation of and the lack of issue it caused my partner and I, even as I got my welcome mail just today. Your milage, as they say, may vary, but BASED ON /CURRENT/ PROCEDURE AND LAW, your partner will not be negatively adjudicated against as the result of visa overstay or unauthorized employment."

Good to know!