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beating the K1 work authorization question to death...

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Filed: K-1 Visa Country: Israel
Timeline

Ok, I KNOW this topic has been discussed at length on this forum and I have read many of these posts and understand that the general consensus is we must get married and apply for AOS and the EAD right after we are married in order for him to authorized to work.

So, how come our immigration lawyer is assuring us that he can work immediately?? Lawyer says that a work permit is incident to the status of a K1 visa. My understanding is that we still need the EAD that takes a couple/few months, but he insists my fiance can still work in the meantime while we are applying for the EAD because it's understood that the time period will be very short until he gets the form - or something like that.

We obviously want to do the right thing here. If our lawyer is mistaken, can anyone point me to any concrete references for the rules surrounding K1 employment? Like a USCIS page? There was an old VJ link to a USCIS page that apparently stated the rule but the link is from 2006 and no longer works. Anyone have anything else??

Thanks!


09/02/10 Mailed I-129F

09/07/10 NOA1

03/17/11 NOA2 approved

06/06/11 Interview. Visa approved. Told we'll get visa in 7-10 days. Lies.

07/12/11 Visa in hand

07/15/11 Arrival in the U.S.

07/21/11 Marriage

07/28/11 Mailed I-485

08/03/11 NOA for I-485

08/29/11 Biometrics

10/17/11 Greencard interview. Approved.

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No matter what the lawyer says, when the k1 applicant applies for a SSN after POE, it will be marked with "VALID FOR WORK ONLY WITH DHS AUTHORIZATION" and this restriction can only be removed with the EAD or GC. Sorry for no link, I am just basing it on my experience. That in itself, to me, was enough proof to know that I could not have worked back then. I wish it wasn't the case though, could have saved from some boredom back then!


My Journey:

We met through a study-abroad program in Shanghai, China in August of 2009

We got engaged March of 2010

I received my K1 VISA in 6 months (June-December 2010)

We were married 04/02/2011
I received my conditional 2-year greencard (AOS) in 2.5 months with no interview (April-June 2011)

Our son was born 02/03/2013

I received my masters degree in Speech-Language Pathology 04/17/2013

I received my 10-year greencard (ROC) in 3 months with no interview (March-June 2013)

My husband returned from deployment 06/20/2013

My naturalization journey took 4 months (April-August 2014)

I became a US citizen on 08/01/2014

Received passport in 3 weeks (regular processing)

Thank you, VJ! smile.png

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Filed: Lift. Cond. (apr) Country: China
Timeline

Based on the following quote from this USCIS page, that immigration attorney is wrong.

Category 3: You may be in a category which requires you to file for permission to work

Some of those that fall in the first and third categories (including those who have a pending Form I-485, Application to Register Permanent Residence or Adjust Status) are required to apply for work authorization and an Employment Authorization Document (EAD) with the Form I-765, Application for Employment Authorization prior to seeking work in the United States. The EAD is the proof that you will show to your employer that you are allowed to work in the United States. In most cases, EADs are granted for a 1 year period.

USCIS issues EADs for the following reasons:

As proof that you are allowed to work in the United States for a specific time period or while you have a specific immigration status

These are the EAD instructions, the categories where applying for permission to work are defined.

Edited by Ryan H

Our journey:

Spoiler

September 2007: Met online via social networking site (MySpace); began exchanging messages.
March 26, 2009: We become a couple!
September 10, 2009: Arrived for first meeting in-person!
June 17, 2010: Arrived for second in-person meeting and start of travel together to other areas of China!
June 21, 2010: Engaged!!!
September 1, 2010: Switched course from K1 to CR-1
December 8, 2010: Wedding date set; it will be on February 18, 2011!
February 9, 2011: Depart for China
February 11, 2011: Registered for marriage in Wuhan, officially married!!!
February 18, 2011: Wedding ceremony in Shiyan!!!
April 22, 2011: Mailed I-130 to Chicago
April 28, 2011: Received NOA1 via text/email, file routed to CSC (priority date April 25th)
April 29, 2011: Updated
May 3, 2011: Received NOA1 hardcopy in mail
July 26, 2011: Received NOA2 via text/email!!!
July 30, 2011: Received NOA2 hardcopy in mail
August 8, 2011: NVC received file
September 1, 2011: NVC case number assigned
September 2, 2011: AOS invoice received, OPTIN email for EP sent
September 7, 2011: Paid AOS bill (payment portal showed PAID on September 9, 2011)
September 8, 2011: OPTIN email accepted, GZO number assigned
September 10, 2011: Emailed AOS package
September 12, 2011: IV bill invoiced
September 13, 2011: Paid IV bill (payment portal showed PAID on September 14, 2011)
September 14, 2011: Emailed IV package
October 3, 2011: Emailed checklist response (checklist generated due to typo on Form DS-230)
October 6, 2011: Case complete at NVC
November 10, 2011: Interview - APPROVED!!!
December 7, 2011: POE - Sea-Tac Airport

September 17, 2013: Mailed I-751 to CSC

September 23, 2013: Received NOA1 in mail (receipt date September 19th)

October 16, 2013: Biometrics Appointment

January 28, 2014: Production of new Green Card ordered

February 3, 2014: New Green Card received; done with USCIS until fall of 2023*

 

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Filed: K-1 Visa Country: Israel
Timeline

Thanks guys - forgot to mention that he already HAS a SS card and number from the 6 years he was a student in the U.S.

Does that change anything?


09/02/10 Mailed I-129F

09/07/10 NOA1

03/17/11 NOA2 approved

06/06/11 Interview. Visa approved. Told we'll get visa in 7-10 days. Lies.

07/12/11 Visa in hand

07/15/11 Arrival in the U.S.

07/21/11 Marriage

07/28/11 Mailed I-485

08/03/11 NOA for I-485

08/29/11 Biometrics

10/17/11 Greencard interview. Approved.

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Filed: Citizen (apr) Country: Canada
Timeline

Sorry they have to fill out a special immigration verification check form that tells them if you are allowed to work or not before you can start working. Obviously hes not allowed to work and he does not have the correct papers to work! http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD


-------------------------------------------- as1cE-a0g410010MjgybHN8MDA5Njk4c3xNYXJyaWVkIGZvcg.gif

Your I-129f was approved in 5 days from your NOA1 date.

Your interview took 67 days from your I-129F NOA1 date.

AOS was approved in 2 months and 8 days without interview.

ROC was approved in 3 months and 2 days without interview.

I am a Citizen of the United States of America. 04/16/13

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No. He is not eligible to work. There used to be some confusion that K-1s could work, but that has been clarified now with the updated I-9 Employment eligibility form. Your lawyer is out of date. Check the I-9 Employment Eligibility form, and note the requirements. He can APPLY to get an EAD before marriage, however, it will take around 3 months to process, expire when his I-94 does (3 months from POE), and cost $340.


AOS for my husband
8/17/10: INTERVIEW DAY (day 123) APPROVED!!

ROC:
5/23/12: Sent out package
2/06/13: APPROVED!

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Filed: K-1 Visa Country: Israel
Timeline

No. He is not eligible to work. There used to be some confusion that K-1s could work, but that has been clarified now with the updated I-9 Employment eligibility form. Your lawyer is out of date. Check the I-9 Employment Eligibility form, and note the requirements. He can APPLY to get an EAD before marriage, however, it will take around 3 months to process, expire when his I-94 does (3 months from POE), and cost $340.

Thanks for the link Harpa Timsah! But - this is the thing - when I look at the I-9 Employment Eligibility form at the last page, it looks like he IS eligible to work because he has a drivers license issued from a U.S. state and a social security card. Both were issued a few years ago. The SS card does not "specify on the face that the issuance of the card does not authorize employment in the U.S." because it was issued when he was previously in the country. It appears by these criteria that he is eligible.

I understand about how we could apply for the EAD without AOS immediately and that it's not worth it, but that's not what our lawyer was suggesting. He said my fiance could work tomorrow if he wanted. I know that if our lawyer says he can work (or seek work) immediately, he will want to do that. But that makes me very nervous, given everything I have heard on VJ when I know the people responding have been through it.

What could be the reason that our lawyer is telling us something different? Is there anything I can show him and my fiance that would prove otherwise?


09/02/10 Mailed I-129F

09/07/10 NOA1

03/17/11 NOA2 approved

06/06/11 Interview. Visa approved. Told we'll get visa in 7-10 days. Lies.

07/12/11 Visa in hand

07/15/11 Arrival in the U.S.

07/21/11 Marriage

07/28/11 Mailed I-485

08/03/11 NOA for I-485

08/29/11 Biometrics

10/17/11 Greencard interview. Approved.

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Filed: IR-1/CR-1 Visa Country: Vietnam
Timeline

Thanks for the link Harpa Timsah! But - this is the thing - when I look at the I-9 Employment Eligibility form at the last page, it looks like he IS eligible to work because he has a drivers license issued from a U.S. state and a social security card. Both were issued a few years ago. The SS card does not "specify on the face that the issuance of the card does not authorize employment in the U.S." because it was issued when he was previously in the country. It appears by these criteria that he is eligible.

I understand about how we could apply for the EAD without AOS immediately and that it's not worth it, but that's not what our lawyer was suggesting. He said my fiance could work tomorrow if he wanted. I know that if our lawyer says he can work (or seek work) immediately, he will want to do that. But that makes me very nervous, given everything I have heard on VJ when I know the people responding have been through it.

What could be the reason that our lawyer is telling us something different? Is there anything I can show him and my fiance that would prove otherwise?

The circumstances from a few years ago do not apply presently, correct? His status as defined by USCIS has changed from his prior entrance. He holds a driver's license that he would not qualify to obtain if this were his first US entry (using the K1).

He does possess documents that would appear to satisfy the requirements of an I-9. But, if an employer entered his info into the E-verify database he would likely show as not authorized for employment.

It boils down to your tolerance for risk. The attorney is not bearing the risk.


I-864 Affidavit of Support FAQ -->> https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/support/i-864-frequently-asked-questions.html

FOREIGN INCOME REPORTING & TAX FILING -->> https://www.irs.gov/publications/p54/ch01.html#en_US_2015_publink100047318

CALL THIS NUMBER TO ORDER IRS TAX TRANSCRIPTS >> 800-908-9946

PLEASE READ THE GUIDES -->> Link to Visa Journey Guides

MULTI ENTRY SPOUSE VISA TO VN -->>Link to Visa Exemption for Vietnamese Residents Overseas & Their Spouses

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Filed: K-1 Visa Country: Israel
Timeline

The circumstances from a few years ago do not apply presently, correct?

I don't know. You are right that the circumstances definitely have changed. But it's not like a driver's license deactivates when he leaves the country, nor does his SS number change. And SS cards don't expire either. Plenty of other documents DO expire. So it seems as though, if they needed to note something on his SS card they would have asked to do just that during the visa application process or at the POE. It seems to me they keep pretty careful track of what documents people have that are from old U.S. residences, and they take away ones that no longer count. So, how are we actually breaking the law by providing his old SS card if someone asks for it, given that they don't expire?


09/02/10 Mailed I-129F

09/07/10 NOA1

03/17/11 NOA2 approved

06/06/11 Interview. Visa approved. Told we'll get visa in 7-10 days. Lies.

07/12/11 Visa in hand

07/15/11 Arrival in the U.S.

07/21/11 Marriage

07/28/11 Mailed I-485

08/03/11 NOA for I-485

08/29/11 Biometrics

10/17/11 Greencard interview. Approved.

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Filed: Citizen (apr) Country: Canada
Timeline

-------------------------------------------- as1cE-a0g410010MjgybHN8MDA5Njk4c3xNYXJyaWVkIGZvcg.gif

Your I-129f was approved in 5 days from your NOA1 date.

Your interview took 67 days from your I-129F NOA1 date.

AOS was approved in 2 months and 8 days without interview.

ROC was approved in 3 months and 2 days without interview.

I am a Citizen of the United States of America. 04/16/13

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Filed: IR-1/CR-1 Visa Country: Vietnam
Timeline

I don't know. You are right that the circumstances definitely have changed. But it's not like a driver's license deactivates when he leaves the country, nor does his SS number change. And SS cards don't expire either. Plenty of other documents DO expire. So it seems as though, if they needed to note something on his SS card they would have asked to do just that during the visa application process or at the POE. It seems to me they keep pretty careful track of what documents people have that are from old U.S. residences, and they take away ones that no longer count. So, how are we actually breaking the law by providing his old SS card if someone asks for it, given that they don't expire?

It's not the document, it's the status. That's what has changed.


I-864 Affidavit of Support FAQ -->> https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/support/i-864-frequently-asked-questions.html

FOREIGN INCOME REPORTING & TAX FILING -->> https://www.irs.gov/publications/p54/ch01.html#en_US_2015_publink100047318

CALL THIS NUMBER TO ORDER IRS TAX TRANSCRIPTS >> 800-908-9946

PLEASE READ THE GUIDES -->> Link to Visa Journey Guides

MULTI ENTRY SPOUSE VISA TO VN -->>Link to Visa Exemption for Vietnamese Residents Overseas & Their Spouses

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Thanks for the link Harpa Timsah! But - this is the thing - when I look at the I-9 Employment Eligibility form at the last page, it looks like he IS eligible to work because he has a drivers license issued from a U.S. state and a social security card. Both were issued a few years ago. The SS card does not "specify on the face that the issuance of the card does not authorize employment in the U.S." because it was issued when he was previously in the country. It appears by these criteria that he is eligible.

I understand about how we could apply for the EAD without AOS immediately and that it's not worth it, but that's not what our lawyer was suggesting. He said my fiance could work tomorrow if he wanted. I know that if our lawyer says he can work (or seek work) immediately, he will want to do that. But that makes me very nervous, given everything I have heard on VJ when I know the people responding have been through it.

What could be the reason that our lawyer is telling us something different? Is there anything I can show him and my fiance that would prove otherwise?

K-1 is a non-immigrant visa. He has as much right to work as a tourist, which is none. If your fiance were to show a DL and his old SS card, he would have to lie elsewhere on his I-9 form, either by saying he was a US Citizen, or that he was an alien allowed to work. Both are not true. Also, how did your fiance get an unrestricted SS card? That should only be given to LPRs and Citizens, not J-1 visa holders.

I understand you're frustrated about getting different answers. I imagine your lawyer is out of date, as I said. It used to be that most K-1 entrants got a "authorized to work" stamp when they entered the US. Now that stamp is not given out, and it doesn't mean there was a change in the system, rather, it was meant to clarify the policy that was in place all along.

Your lawyer is saying that your fiance can work because he wants to, and employers will hire him even though it's illegal, based on the fact that he will get his EAD eventually. Do you think that's good advice? If you fiance needs a talking-to from an Israeli about it in order to believe it, I'll volunteer my husband lol

Lawyers suggest illegal activity all of the time. They make more money if you need to hire them to fix your problems.

Here are some laws...

http://law.justia.com/cfr/title08/8-1.0.1.2.54.2.1.1.html

From 8 CFR

§ 274a.12 Classes of aliens authorized to accept employment.

(a) Aliens authorized incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)–(8), or (a)(10)–(16) of this section, and who seeks to be employed in the United States, must apply to the Bureau of Citizenship and Immigration Services (BCIS) for a document evidencing such employment. BCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States.

K-1 is in A6, as here: (6) An alien admitted to the United States as a nonimmigrant fiancé or fiancée pursuant to section 101(a)(15)(K)(i) of the Act, or an alien admitted as a child of such alien, for the period of admission in that status, as evidenced by an employment authorization document issued by the Service;

Also see here at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=640a3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=640a3e4d77d73210VgnVCM100000082ca60aRCRD

Permission to Work

After admission, your fiancé(e) may immediately apply for permission to work by filing a Form I-765, Application for Employment Authorization.

If he were authorized to work upon entry, they would say he would go and get a job, not that he can apply for an EAD. A K-1 is eligible to apply for work authorization, but it not authorized to work until such authorization has been granted.

Here is more, this time from DHS, who actually authorizes work. Here is a recommendation to change the law from 2006. The recommendation was not granted. It explains the law, however, here, and points out the problems with the current K-1 system. http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_25_EAD_03-20-06.pdf

K-1 Employment Authorization

USCIS issues EADs to K-1 nonimmigrants to be valid only for the period of the authorized nonimmigrant stay – 90 days following admission. INA §214(d); 8 C.F.R. §274a.12(a)(6). K-1s must apply for an EAD, under the nonimmigrant classification, because Customs and Border and Protection (CBP) does not have authority to issue “employment authorized” stamps at ports-of-entry.5 Individuals who seek adjustment of status to lawful permanent residence as a K-1 spouse of a U.S. Citizen must then file a second application for an employment authorization document with the adjustment application.

Unless the applicant marries and applies for adjustment of status almost immediately after entry as a K-1, which is not required under relevant statute or regulations, employment authorization based on the adjustment application will not begin until days or weeks after the K-1 employment authorization period expires due to current processing times. In addition, there may be a several week delay before the newly married couple receives the marriage license from the state, which is required for the adjustment application filing.


AOS for my husband
8/17/10: INTERVIEW DAY (day 123) APPROVED!!

ROC:
5/23/12: Sent out package
2/06/13: APPROVED!

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Filed: K-1 Visa Country: Israel
Timeline

Thanks everyone. You guys are great. I wasn't trying to be difficult, just to make sure I knew enough to try to convey the rules to others. All very helpful.


09/02/10 Mailed I-129F

09/07/10 NOA1

03/17/11 NOA2 approved

06/06/11 Interview. Visa approved. Told we'll get visa in 7-10 days. Lies.

07/12/11 Visa in hand

07/15/11 Arrival in the U.S.

07/21/11 Marriage

07/28/11 Mailed I-485

08/03/11 NOA for I-485

08/29/11 Biometrics

10/17/11 Greencard interview. Approved.

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Filed: IR-1/CR-1 Visa Country: Vietnam
Timeline

Thanks everyone. You guys are great. I wasn't trying to be difficult, just to make sure I knew enough to try to convey the rules to others. All very helpful.

An informed decisions is the best kind.

Best of luck.


I-864 Affidavit of Support FAQ -->> https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/support/i-864-frequently-asked-questions.html

FOREIGN INCOME REPORTING & TAX FILING -->> https://www.irs.gov/publications/p54/ch01.html#en_US_2015_publink100047318

CALL THIS NUMBER TO ORDER IRS TAX TRANSCRIPTS >> 800-908-9946

PLEASE READ THE GUIDES -->> Link to Visa Journey Guides

MULTI ENTRY SPOUSE VISA TO VN -->>Link to Visa Exemption for Vietnamese Residents Overseas & Their Spouses

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