beating the K1 work authorization question to death...

[ecce 20]

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!

[Messybrownhair 251]

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!

[Ryan H 3,790]

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 July 18, 2011 by Ryan H

[ecce 20]

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?

[Inky 1,110]

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

[Harpa Timsah 13,258]

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.

[JimVaPhuong 4,863]

A K1 can apply for an EAD as soon as they step off the plane. They'll have to pay the filing fee, and the EAD will expire the day their I-94 expires - 90 days later. They alien wouldn't be able to work again until they get another EAD based on a pending green card application, or they get a green card. It's kind of pointless.

So, your lawyer was partially right. A K1 is eligible to apply for work authorization, but they aren't authorized to work until they get an EAD. There's no point in applying for an EAD until they also apply for AOS. An EAD issued based on a pending green card application would be valid until a decision is made on the green card application. If the green card is approved then the alien can continue working uninterrupted.

Working without authorization is illegal. It's forgiven for someone who is adjusting status based on being an immediate relative of a US citizen, but not for someone adjusting status based on an I-129F petition. If a K1 goes to an AOS interview and they find out the K1 was working illegally then they'll deny the AOS, and you'll have to start over with a concurrent I-130 and I-485 filing.

FWIW, I'd fire any attorney who suggested I do something illegal.

[ecce 20]

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?

[Anh map 2,098]

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.

[ecce 20]

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?

[Inky 1,110]

HERE use this. http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2ec07cd67450d210VgnVCM100000082ca60aRCRD&vgnextchannel=2ec07cd67450d210VgnVCM100000082ca60aRCRD

he can check E-verify himself and see that he is NOT authorized to work.

Edited July 18, 2011 by Inky

[Anh map 2,098]

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.

[Harpa Timsah 13,258]

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.

[ecce 20]

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.

[Anh map 2,098]

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.