Is A K1 authorized to work without an EAD?

[Rebecca Jo 1,962]

Is there some loop hole in the law that is stopping them from enforcing it? Like I said, he spoke to senior level USCIS staff about this, and they were trying to help him and give him advice about getting the EAD card before the current one expires. Like I said, I am really confused and concerned. None of this adds up to me. I'm not trying to say I think I'm right and your wrong blah, blah, blah. I'm just trying to make sense of a very concerning situation. I mean, you got a piece of paper saying your authorized to work, you pass E-Verify, you talk with USCIS officials. Of course you're going to assume you're doing the right thing.

Well, first of all, I don't put a lot of stock in him having spoken to someone at USCIS about it. Seriously. Had he asked someone at ICE, I'd be more impressed (someone who has been at USCIS for years is not necessarily senior level either - senior level management is not on the Infopass window). If your acquaintance was speaking to the person who collects fingerprints, they don't know the rules. They know how to capture biometric data and that's usually it. If he asked someone on the Infopass window, they SHOULD have been able to tell him he needed an EAD to work. IF they paid attention to the fact he was a K1 entrant. They might not have paid attention to that annotation in his I-485 file.

I saw a thread on britishexpats.com the other day where (basically) the thread concluded with the fact that if the employer hires you, the onus is on them. In a very real world sense (like lots of immigration matters) the K1 entrant illegally working is unlikely to get "caught". There would have to be a workplace raid for that to happen.

Some of us on these forums have put a lot of work into our research. I'm confident of the fact that if you are a K1 entrant, unless you have a plastic EAD card issued by the Service, you cannot legally work. So if an employer makes a mistake; or E-Verify makes a mistake; or even a USCIS clerk states otherwise, I'm certain they are wrong. I've read enough data straight from USCIS and from attorney's interpreting the I-9 that I'm confident in the correct answer.

I don't blame you for being confused, by the way.

Edited November 7, 2010 by JohnnyQuest

[wagonmaker 7]

Thanks for the input here - I also am not accusing anyone of intentional misinterpretation - obviously there is great confusion here, but dismissing contradicting advice is not necessarily the right thing to do. The attorney we consulted for our K-1 work question is expert in both family-based and work visas - and she has 20 years experience, gained not just from reading the law and trying to understand what it means, as most of us here are doing. She works every day in this field, and has colleagues, and is not giving an off-hand opinion at a cocktail party, she was hired to give her professional expertise in getting the K-1 Visa and EAD and AoS and could be sued for malpractice if she did not understand this properly.

The social security office (not a local one, but the one in downtown NYC where they handle immigrants all the time) would not take the application until asking for the work authorization and examining the POE stamped document. Then they took the application, saying you are work authorized, temporarily. The card arrived, stamped "valid for employment only with DHS authorization". The back of the card says If you are an alien legally in the US`with temporary authorization to work, your card will be marked "VALID FOR EMPLOYMENT ONLY WITH DHS AUTHORIZATION". If you show this card to an employer as evidence of employment eligibility, you will have to show your US immigration document authorizing employment. Note, "temporary" - that is what K-1 visa holders have - temporary work authorization. Temporary until the EAD, but only good until the date that was written in on the POE stamp by the DHS employee - CBP is a part of DHS - at JFK airport. The lawyer confirmed that DHS authorization includes these temporary CBP stamps.

I do not know if my friend's fiance's employer has gone to e-verify, and I'll report on what happens there, but Crissie's experience was that e-verify confirmed that the temporary work auth was good. Earlier in this thread (or maybe it was somewhere else on Visa Journeys), a lot of noise was generated on this, saying that now there is E-Verify, and with E-Verify the POE stamp "loophole" was closed, and that you would not pass E-Verify without a plastic EAD. Yet Crissie is reporting that E-Verify DID confirm eligibility. Now you want us to believe that the stamp is not valid even though authorized DHS employees give it and go to the trouble of indicating an expiration date, and that the touted E-Verify system may give a false positive, and that USCIS officials who are consulted may not know what they are talking about, and an immigration lawyer who does this work every day is wrong too. All possible, of course, but I am wondering if there's any room here for people on this board to acknowledge that a lay person's well-meaning and somewhat informed reading of a law that is always written obscurely because that's what law-writers do, is more accurate than all of the above people whose jobs depend on their being right about this? And how could E-Verify be wrong?

I'm sorry, but this does not add up, no matter which way you look at it. One thing I agree on is that of course if you wait until the EAD plastic card comes, you wont have these questions. And that might be a good thing to do for peace of mind. But in the real world people have to eat, and they need to be employed, and sometimes a duck is a duck, when duck experts say so. I really do want to understand this, because I don';t want to see Crissie's friend or my friend's fiance doing anything wrong or in any kind of trouble, after having done all the work it took to get that K-1 visa approved. But something is not right here.

One other thing - it had been said on this board back in the Spring that K-1 petitions were taking 5-6 months to be approved out of the Vermont office. People were posting their timelines and bemoaning that awful, long wait. No exception,s it was said here, that's what it takes. the CIS site said the same thing. Just have to wait 5 or 6 months. My friend filed his petition in late May, fully expecting to have to wait until about now to get that first approval. But he got his approval in June. One month from the filing date. Approved. Why? People here reported that they heard it was because the Texas office needed work so a load of petitions were shipped there and processed quickly. So the people here who earnestly and compassionately counseled patience, because it cannot happen any faster than 5 months were dead wrong. Happily so, for my friend and his fiance.

The moral is, you are lay people who have done a tremendous amount of research, and are well-meaning, and are very helpful in trying to navigate these very murky waters. It is very appreciated. But in the end of the day, you cannot make such definitive statements - others have interpreted the same facts in different ways.

Crissie - good luck to your friends - I truly hope that what my friend's lawyer advised them is correct, for them and for you. please do let us know if you learn anything more as I will. I know that the folks here are doing their best to give accurate info, and they may be right, but if they can't acknowledge that they could be wrong, then I don't know what to say.

No hard feelings folks I hope - we all want the same thing, and that is that our loved ones and friends get what they have worked so hard for, and can be productive members of our country, married and happy. Goodness knows, the USCIS doesn't make that easy.

[wagonmaker 7]

One other thing that I may not have made clear - my friends did get married before she applied for the SSN, and she had the marriage cert with her when they went to the Social Security office, which I believe they were asked for. They also have filed for adjustment of status and the plastic EAD which they hope will come through before the temporary authorization expires.

[Rebecca Jo 1,962]

Thanks for the input here - I also am not accusing anyone of intentional misinterpretation - obviously there is great confusion here, but dismissing contradicting advice is not necessarily the right thing to do. The attorney we consulted for our K-1 work question is expert in both family-based and work visas - and she has 20 years experience, gained not just from reading the law and trying to understand what it means, as most of us here are doing. She works every day in this field, and has colleagues, and is not giving an off-hand opinion at a cocktail party, she was hired to give her professional expertise in getting the K-1 Visa and EAD and AoS and could be sued for malpractice if she did not understand this properly.

Yes, malpractice insurance is for when lawyers make mistakes. Your lawyer just made one. She should know you can't just look at the I94 stamped in the passport to prove work authorization. It takes the combination of documents listed on the back of the I9.

The social security office (not a local one, but the one in downtown NYC where they handle immigrants all the time) would not take the application until asking for the work authorization and examining the POE stamped document. Then they took the application, saying you are work authorized, temporarily. The card arrived, stamped "valid for employment only with DHS authorization". The back of the card says If you are an alien legally in the US`with temporary authorization to work, your card will be marked "VALID FOR EMPLOYMENT ONLY WITH DHS AUTHORIZATION". If you show this card to an employer as evidence of employment eligibility, you will have to show your US immigration document authorizing employment. Note, "temporary" - that is what K-1 visa holders have - temporary work authorization. Temporary until the EAD, but only good until the date that was written in on the POE stamp by the DHS employee - CBP is a part of DHS - at JFK airport. The lawyer confirmed that DHS authorization includes these temporary CBP stamps.

Yes the SS office will give you a card. Again, it alone does not make a person work authorized. Please read the back of the I9.

I do not know if my friend's fiance's employer has gone to e-verify, and I'll report on what happens there, but Crissie's experience was that e-verify confirmed that the temporary work auth was good. Earlier in this thread (or maybe it was somewhere else on Visa Journeys), a lot of noise was generated on this, saying that now there is E-Verify, and with E-Verify the POE stamp "loophole" was closed, and that you would not pass E-Verify without a plastic EAD. Yet Crissie is reporting that E-Verify DID confirm eligibility. Now you want us to believe that the stamp is not valid even though authorized DHS employees give it and go to the trouble of indicating an expiration date, and that the touted E-Verify system may give a false positive, and that USCIS officials who are consulted may not know what they are talking about, and an immigration lawyer who does this work every day is wrong too. All possible, of course, but I am wondering if there's any room here for people on this board to acknowledge that a lay person's well-meaning and somewhat informed reading of a law that is always written obscurely because that's what law-writers do, is more accurate than all of the above people whose jobs depend on their being right about this? And how could E-Verify be wrong?

There was a member here sometime back who worked in human resources and had direct knowledge of a K1 not passing an E-Verify. I can't recall the name of the member of how far back the post was.

No hard feelings folks I hope - we all want the same thing, and that is that our loved ones and friends get what they have worked so hard for, and can be productive members of our country, married and happy. Goodness knows, the USCIS doesn't make that easy.

No hard feelings here.

[Nik+Heather 121]

So, you haven't addressed the problem of authority.

CBP can NOT grant someone employment authorization. Their stamp, since it is given by a department who doesn't have that authority, is irrelevant. It's like getting the librarian to write out permission for you to drive instead of going to the DMV. How do you think the cop will react when he pulls you over for speeding??

The SSA can NOT grant someone employment authorization. Read that document I linked at the bottom of my post. Just because they give you a social security number, does not mean you can work. In fact, it is referred to in that document that people were waiting for their EAD from USCIS. If you want to know how reliable a person at the average SSA office is in knowing about EADs and K-1's, just read some of the other threads in this same section!

Now, maybe your lawyer is giving you advice based on the conditions in New York. Or maybe she is saying that it's the employer's butt on the line and not yours. That's where lawyers come in because they can tell you how the law is enforced in your area and how your behaviors will affect you. This forum is for people all over the US, and you repeating her advice here, when your circumstances are known to her, doesn't mean it's safe for everyone to follow these rules. Have you told her that you're running off to a large immigration forum and repeating her advice? I wonder what she'd think of that! New York is a fairly immigrant friendly place. What one might "get away with" in NY is NOT something you should be recommending to people in Arizona.

I think your lawyer's take on the portions of the law I quoted are wrong. It clearly states that USCIS is the body which approves employment authorization and that K-1 entrants must apply for an EAD with a FEE to USCIS, which means that a free stamp from CBP can't possibly be valid.

[wagonmaker 7]

So, you haven't addressed the problem of authority.

CBP can NOT grant someone employment authorization. Their stamp, since it is given by a department who doesn't have that authority, is irrelevant. It's like getting the librarian to write out permission for you to drive instead of going to the DMV. How do you think the cop will react when he pulls you over for speeding??

The SSA can NOT grant someone employment authorization. Read that document I linked at the bottom of my post. Just because they give you a social security number, does not mean you can work. In fact, it is referred to in that document that people were waiting for their EAD from USCIS. If you want to know how reliable a person at the average SSA office is in knowing about EADs and K-1's, just read some of the other threads in this same section!

Now, maybe your lawyer is giving you advice based on the conditions in New York. Or maybe she is saying that it's the employer's butt on the line and not yours. That's where lawyers come in because they can tell you how the law is enforced in your area and how your behaviors will affect you. This forum is for people all over the US, and you repeating her advice here, when your circumstances are known to her, doesn't mean it's safe for everyone to follow these rules. Have you told her that you're running off to a large immigration forum and repeating her advice? I wonder what she'd think of that! New York is a fairly immigrant friendly place. What one might "get away with" in NY is NOT something you should be recommending to people in Arizona.

I think your lawyer's take on the portions of the law I quoted are wrong. It clearly states that USCIS is the body which approves employment authorization and that K-1 entrants must apply for an EAD with a FEE to USCIS, which means that a free stamp from CBP can't possibly be valid.

The only advice I am giving folks is to talk with a reliable immigration attorney who is familiar with how the laws are enforced in their locale, after learning about the process here - I think this forum is extremely valuable in helping people understand the process, but yours or my reading of the law is not the same as having a trained professional with experience interpret it. That is just the truth.

To answer your last point, I never said that the JFK stamp is a substitute for the EAD application with fee, I said that the facts are that it is issued by a division of DHS (as CBP is - nothing like the librarian and the DMV actually), it says "employment authorized" and it gives an expiration date and this all means something - the interpretation is that it is providing temporary authorization until the EAD is received, or the stamp's expiration date is reached, whichever is earlier. My friends did file the AoS and EAD applications, WITH THE FEE, shortly after marriage, and within 3 weeks they received the biometrics appointment which is in another week or so, and they hope the EAD will arrive before the temporary stamp expires. Meanwhile, she has an SSN and was able to get a job, providing the employer with her passport and the JFK stamp, as outlined on the back of I-9. (And yes, I know that SSA cannot authorize employment.) I really don't know if the employer went through e-verify or not, but I know that they employed her. And their HR department are not inexperienced - they have other employees in similar status and are a mid-sized NYC company. So yes, maybe they are more flexible in NY, I don't know - but I am glad to see that you've broadened your thinking a little and allow that you might not have the only correct interpretation.

No question that even with the JFK stamp, if a person waits for the plastic EAD they are in a less ambiguous state, so yes, your advice to wait is not bad advice. But people need to work, and it might be helpful for them to know that some are interpreting this differently from how you are. I think that Crissie's experience - having discussed this with CIS employees as I recall and given the same info - shouldn't be thrown out any more than my friends', just because it's not the way you think the law reads. Instead, indeed, maybe it is a question of how it is being applied.

Edited November 26, 2010 by wagonmaker

[Rebecca Jo 1,962]

*bangs head against wall*

[wagonmaker 7]

*bangs head against wall*

Hope that didn't hurt, Johnny.

Is it even possible that your interpretation is not the only one? That a trained and experienced immigration lawyer *might* be correct?

I'll post an update when I get it, if anyone's interested. Crissie, anything more on yours?

Cheerio

[Rebecca Jo 1,962]

That a trained and experienced immigration lawyer *might* be correct?

Of course it's possible.

Just not in the case of the lawyer you spoke with.

[Rwlaird 18]

I hope to have my fiancee going through the port of entry soon so was wondering about the EAD process. I remembered reading somewhere about getting temporary authorization at the port of entry but then I read about the process I-765 and wondered why we needed to send in the I-765 with the $340, wait for whatever period if we could just get it immediately at the port of entry. I'm glad I just read through all of this so that I'm totally confused.

[JRTLFlores 2]

Are there other airports than just JFK that can issue that temporary work authorization? Is there a site or two that verifies this?

[marriedtomrg 140]

No idea, but I can tell you now that the stamp is useless even if you get it. If you are entering as a K1, you need an EAD to be authorized to work. Only USCIS can issue an EAD.

Are there other airports than just JFK that can issue that temporary work authorization? Is there a site or two that verifies this?

Edited January 26, 2011 by marriedtomrg

[marriedtomrg 140]

You need an EAD to work; you can either apply for one at the same time as your Adjustment of Status (in which case, the $380 fee is waived...you only pay the fee if you decide to file for EAD before you apply for AOS). Note: EAD fees increased in November 23, 2010, it's $380 now.

I hope to have my fiancee going through the port of entry soon so was wondering about the EAD process. I remembered reading somewhere about getting temporary authorization at the port of entry but then I read about the process I-765 and wondered why we needed to send in the I-765 with the $340, wait for whatever period if we could just get it immediately at the port of entry. I'm glad I just read through all of this so that I'm totally confused.

Edited January 26, 2011 by marriedtomrg

[nylonmac 10]

Reading through all of this makes me feel kind of confused.

I have also seen a link TracyTN has in her signature.

https://secure.ssa.gov/apps10/poms.nsf/lnx/0110211420

Reading through it, it puts K-1 visas in a section which permits the visa holder to work without explicit authorization from DHS/USCIS, without an EAD or a stamp within one's passport. This is in Section C part 1. There are no comments or asterisks showing they MUST have EADs in this table in comparison to some other visa classes. Interestingly K-2 through K-4 all require EADs according to Section C part 2.

[kdlangfan 1]

Not sure if it's worth posting anything here as everyone seems to have abandoned this discussion....not that I blame anyone for doing so! Talk about confusing! I'm at the point where I am ready for POE so this next phase is coming up for me.

What I find interesting/annoying/frustrating is there is no provision/information for those of us who already have a good job and could actually keep the same job after POE. Yes I am moving from Canada to the US, however, it's only two hours away, just over the border, and in the direction of my current job! If I were able to cross the border every day and work, then I could keep my job. The process just seems to assume that everyone is moving a long distance.