Can my EAD be handled differently

[qcmeetsnc 1]

I will be entering the US on a K1 visa on October 30th and I am wondering about the EAD process. I had read in the past about getting a temporary work permit as soon as you crossed the border, but it seems that the information I am now reading has changed. Having access to that temporary permit was a great thing for me as I already have a job.

I have been working in Canada for an American-based company for 2 years. Obviously, when I get my EAD, I will be able to do the same job I have been doing, but in the US. So, same employer, same job, different country.

Based on what I had read earlier, both my employer and I were under the assumption that I could start working in the US as soon as I crossed the border. Is there still a way to do that or do I have to wait until I get my EAD? Even if there is a fee for it, it beats losing a few thousand dollars in income! If I can't start working right away, does that include work from home on stuff that is done for our Canadian market?

Any info would be greatly appreciated.

[Saddle Bronc 124]

You can ask at a land POE about this--and you may "luck-out" and actually get the 90-day EAD. You won't be able to get it at an airport PFI (and no non-PFI airport services JFK, where such 90-day EAD's are issued).

Unfortunately, there is no way that USCIS will complete processing your I-485/I-765/I-131 packet prior to day 90--so you will not be able to work after that date until the "proper" EAD arrives.

[nickbits 43]

If you are in the US or the company is in the US, you are not supposed to work w/o an EAD.

There is a grey area (I think) if you want to work for a Canadian company remotely, however, most advise against doing that as well.

[qcmeetsnc 1]

Thanks for the quick replies.

Suvathapuran, I have a question to make sure I understand your reply:

If I am granted a 90-day temporary work permit, I could work for that time but there would likely be a gap between its expiration and my "real" EAD. Is that correct?

Should I obtain anything from my employer to prove that having a 90-day EAD would be beneficial? Might that help me get it?

Thanks again.

[Kathryn41 3,205]

For clarification - entering on a K-1 even with a 'work authorized' stamp in the passport - does not allow you to work legally in the US, even if you already have a job lined up.

K-1s used to be able to take advantage of a loop-hole in the legislation that provided a gray area on whether they were working legally or not during the 90 day validity of the I-94 entry/exit visa (you'll get that when you cross the border). That loophole was closed about 2 years ago (I believe) and the employer must now obtain documents listed in the I-9 (Employment Eligibility Verification) form from any employee. The phrasing is clear that a K-1 now needs to show an official EAD document issued by USCIS, and not the stamp from the border, in order to work legally. http://www.uscis.gov...es/form/i-9.pdf

The EAD currently takes about 60 days to process but generally allows for a 90 day processing time. If you apply immediately after entering the US you would be able to get an EAD based on the I-94. Unfortunately, it would expire on the same day as the I-94. You would have to pay a separate fee - several hundred dollars - for the privilege of working for a month or less. When you get married, you need to apply to adjust status (AOS) from a non-immigrant fiance to a permanent resident - getting your green card - which provides permission for you to live and work in the US. You apply for an EAD based upon the AOS concurrently, and this will allow you to work while the AOS is being processed (that can take from a number of months up to 2 years). Again, there would be about a 60 day processing time for USCIS to process the paperwork and issue the EAD. Until you have the EAD you cannot work legally in the US.

Your employer bears the consequences of your illegal employment if you do work and faces the risks of various fines. While unauthorized employment and visa overstays are forgiven when the AOS based upon marriage to a US citizen is approved, you would still have to declare any illegal employment to USCIS. There is no way to predict when such unauthorized employment will come back and 'bite' you.

Perhaps your employer can discuss the situation with an immigration lawyer knowledgeable in employment based visas - there might be some sort of way to do some sort of a transfer that would allow you to work legally while waiting for the green card. It is worth exploring. Hopefully, you and your employer can find an alternative, temporary process that will work for your circumstances. If not, then it looks like you will probably have to take a somewhat extended leave of absence.

For other posters, please remember it is a violation of the terms of service for this site to suggest - or hint - to anyone that they follow any path that violates any legal process for immigration. Post advocating such action has been removed.

Edited September 30, 2010 by Kathryn41

[qcmeetsnc 1]

Thanks Kathryn. Much, much appreciated!