On O-1, getting K-3: Question about EAD

[MeMew 0]

Here's my situation:

-I'm working in the US on a sponsored O-1 Visa, which is valid for a few more years. I'm employed by the sponsor.

-I'm also married to a US citizen, have been for 3 years. We have no dependents, have been living in the US (and both working) for just over a year

-I'm about to apply for my K-3 (at least, I believe that is the Visa I'm going for; Green Card). Will be sponsored by my wife, of course. The petition is almost ready to go out. I've got all of my forms filled out and will be filing them all together: i-130, i-485, i-864, g-325 for myself/wife, i-693 (med exam is done), g-1145. At this point I just need to get together the supporting docs, which are almost ready too.

I've also filled out my i-765, and have classified it as ( c )( 9 ):

"( c ) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. BCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending.

(9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245©(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence;"

And, finally, I'm considering taking a job at a new employer (ie. moving on from the employer that is sponsoring my O-1).

So, given my described situation; how soon after filing for my K-3 would I be able to accept a job at a new employer? What needs to happen exactly before I can do that?

A clear answer on this would be very appreciated. I've been trying to sort this out for a week now and have not been able to get a straight answer. I've tried other forums (answers have been confused and full of legal jargon) and I've tried contacting USCIS (their call line is notoriously difficulty to navigate and I haven't been able to reach a person to speak to. I'm going to try more today)

Any other info that would help, just ask.

Hoping to get some clarity

Edited December 6, 2010 by MeMew

[pushbrk 13,072]

Here's my situation:

-I'm working in the US on a sponsored O-1 Visa, which is valid for a few more years. I'm employed by the sponsor.

-I'm also married to a US citizen, have been for 3 years. We have no dependents, have been living in the US (and both working) for just over a year

-I'm about to apply for my K-3 (at least, I believe that is the Visa I'm going for; Green Card). Will be sponsored by my wife, of course. The petition is almost ready to go out. I've got all of my forms filled out and will be filing them all together: i-130, i-485, i-864, g-325 for myself/wife, i-693 (med exam is done), g-1145. At this point I just need to get together the supporting docs, which are almost ready too.

I've also filled out my i-765, and have classified it as ( c )( 9 ):

"( c ) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. BCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending.

(9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245©(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence;"

And, finally, I'm considering taking a job at a new employer (ie. moving on from the employer that is sponsoring my O-1).

So, given my described situation; how soon after filing for my K-3 would I be able to accept a job at a new employer? What needs to happen exactly before I can do that?

A clear answer on this would be very appreciated. I've been trying to sort this out for a week now and have not been able to get a straight answer. I've tried other forums (answers have been confused and full of legal jargon) and I've tried contacting USCIS (their call line is notoriously difficulty to navigate and I haven't been able to reach a person to speak to. I'm going to try more today)

Any other info that would help, just ask.

Hoping to get some clarity

Visas are used to enter countries, so since you're already here, you'll be adjusting status, not applying for a visa. Start by clicking on the word Guides at the top of any page here, then ask your remaining questions in the Adjustment of Status forum. http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

You can accept a job from a new employer when you have EAD or a Green card.

Edited December 6, 2010 by pushbrk

[MeMew 0]

Visas are used to enter countries, so since you're already here, you'll be adjusting status, not applying for a visa. Start by clicking on the word Guides at the top of any page here, then ask your remaining questions in the Adjustment of Status forum. http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

You can accept a job from a new employer when you have EAD or a Green card.

I see now, I'm actually applying for change of status, and will get a 10 year IR-6 Green Card. I'll see if I can get this thread moved to the correct forum.

I've read alsewhere that given this, I can accept employment from a company other than the one that sponsored my O-1 as soon as I've properly filed my i-485 (which I'm filing along with my i-130) and receive e-notification. Can anyone confirm this fact? And does anyone have any idea of how long it takes for that to happen, once I've sent the forms off? (i-130 + i-485 + the rest)

[pushbrk 13,072]

I see now, I'm actually applying for change of status, and will get a 10 year IR-6 Green Card. I'll see if I can get this thread moved to the correct forum.

I've read alsewhere that given this, I can accept employment from a company other than the one that sponsored my O-1 as soon as I've properly filed my i-485 (which I'm filing along with my i-130) and receive e-notification. Can anyone confirm this fact? And does anyone have any idea of how long it takes for that to happen, once I've sent the forms off? (i-130 + i-485 + the rest)

I can confirm that you cannot accept work from a different company until you receive EAD. I already told you that in very clear terms.

[MeMew 0]

This is why I'm asking; here is the advice I was given on another forum. I'm basically just looking for a second opinion or confirmation from someone else (which I'd love to get from USCIS themselves, but they're so difficult to contact):

As the spouse of a USC whose marriage has already lasted over 2 years your will receive a full 10 year greencard issued with code IR-6 (which is the adjustment code equivalent to the Immigrant Visa issued with code IR-1). K-visas are non-immigrant fiances and spouses of a USC or children of USC (or of their fiance or spouse).

INA: ACT 274A - UNLAWFUL EMPLOYMENT OF ALIENS

(h) Miscellaneous Provisions.-

(1) Documentation.-In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.

(2) Preemption.-The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

(3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

This means that if you already have an EAD or a work authorized visa (O-1) you may continue to work on the previously issued EAD or visa until you get your new EAD. However, when you look at INA 245© as the spouse of a USC, you are OK to accept employment other than what was previously authorized as soon as you have properly filed the I-485 [as soon as you get the e-notification you may work for someone other than the O-1 employer].

INA 245

© Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)© ; (4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S) ; (6) an alien who is deportable under section 237(a)(4)(B); (7) any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.

[pushbrk 13,072]

This is why I'm asking; here is the advice I was given on another forum. I'm basically just looking for a second opinion or confirmation from someone else (which I'd love to get from USCIS themselves, but they're so difficult to contact):

As the spouse of a USC whose marriage has already lasted over 2 years your will receive a full 10 year greencard issued with code IR-6 (which is the adjustment code equivalent to the Immigrant Visa issued with code IR-1). K-visas are non-immigrant fiances and spouses of a USC or children of USC (or of their fiance or spouse).

INA: ACT 274A - UNLAWFUL EMPLOYMENT OF ALIENS

(h) Miscellaneous Provisions.-

(1) Documentation.-In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.

(2) Preemption.-The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

(3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

This means that if you already have an EAD or a work authorized visa (O-1) you may continue to work on the previously issued EAD or visa until you get your new EAD. However, when you look at INA 245© as the spouse of a USC, you are OK to accept employment other than what was previously authorized as soon as you have properly filed the I-485 [as soon as you get the e-notification you may work for someone other than the O-1 employer].

INA 245

© Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)© ; (4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S) ; (6) an alien who is deportable under section 237(a)(4)(B); (7) any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.

If the new employer concurs with this advice and will actually employ you without the EAD card, then go for it. The risk is their's really, not yours.

[Darnell 8,479]

*** Not a K-3 visa topic - moving to AOS/Work forum ***