jim345

Hello, we thankfully got our k1 visa the other day and are looking forward to our trip. We plan to go thru JFK and get the Employment Authorization (EAD) stamp, which is good for 90 days, and apply for the Adjustment of Status (AOS) fairly quickly once we arrive.

Our understanding is that when we apply for the AOS, we can apply for a one year EAD card. And that after 90 days, it is possible to get an "interim EAD".

Our question is, is it possible to work continuously, or does this inevitably create large gaps in EAD status?

Ex:
Day 1: JFK , get EAD stamp, start 90 days
Day 10: Send AOS, EAD applications
Day 20: Receive notice of receipt (NOA) (90 day wait starts)
Day 91: EAD stamp expires
Day 111: Eligible for interim EAD, go to local office

It seems like the time between entry and NOA will result in a gap. Plus we're not sure if, for the interim EAD, they give it to you on the spot, or you have to wait even longer.

Has anyone had experiences with this, and how one manages this with an employer (not sure if employer is appropriate, as it is a research "stipend" from a goverment research center--maybe a whole other issue)

Thanks in advance!

Folinskyinla

Hi:

Your math is off -- the 90 day clock for the interim EAD is stopped while you are processing for the biometrics -- it is in your interest to get the biometrics ASAP after getting your I-797 receipt notice on the I-765.

jim345

Thanks. That's good to know.

Can that be done quickly -- going in person to the USCIS office -- or is it another apply and wait for months deal?

ian-mstm

This is not to you specifically but just a general observation. IMHO, way too much emphasis is put on going through JFK just to get the stamp. The stamp is good for 90 days only, and if you can get a SSN and find and start a job within that time, while there are hundreds of thousands of well-qualified folks already looking for work, then you must have some sort of magic beans. On top of that, many employers are hesitant to hire someone who, regardless of their immigration status, does not have local references on their resume. And, depending on the company and the specific job, all this is exacerbated if a credit check is needed.

Yes, it's nice to be able to work ASAP and many couples genuinely need the extra income but, from my own experience - and I got an EAD card at the border when I entered the US (ah, those were the days) and had a SSN within a week - I was unemployed for 4 months when I first moved here and I already spoke fluent English, was familiar with the customs and culture, had a graduate degree, was well qualified in my area of expertise, and moved to a metropolitan area where unemployment was not an issue.

I seriously think that, while it's nice to have - and you don't need work authorization to look for work - those 90 days would be better spent getting to know the area in which you live, becoming familiar with your surroundings, learning to put up wi... er... live with your new spouse, and network to make the contacts that will get you that job once you've settled in. Moving to a new country is stressful, no matter how well you handle it. Forcing yourself to get a job on top of everything else that will be new and unfamiliar, only adds a lot of unnecessary stress.

Okay... I'll get off the soapbox now.

Ian

Ray

Thank God for the McDonalds University....

jeffreyhy

Ian,

Many more thoughtful and insightful posts like this and you're going to have to change your byline.

Regards, JEff

scrubbedexpat099

I kept this, unfortunately I do not remember who posted it:

Wherever there is a discrepancy between the requirements of the law and
likelihood of discovery or penalties, the public makes risk analysis and
proceeds accordingly. The term technically means required by law.

Citation to the US Code of Federal Regulations would require a depth
step-by-step analysis in order to provide explanation of how all of the provisions implicated by this question interrelate.

In general, however, the progression is as follows:

1. K-1 classification may last no longer than 90 days.

2. K-1 classification is for fiance(e)s of US citizens only.

3. As soon as a K-1 alien marries, he/she is no longer a fiance(e).

4. K-1 aliens are work authorized incident to status, per 8 CFR 274a.12(a)(6).

5. K-1 work authorization may last no longer than the status lasts, whether
the documentation issued to the K-1 alien has expired or not.

6. An employment authorization document is required under 274a.12(a)(6) to
K-1 aliens, although INS General Counsel takes the position that 274a.12(a)
aliens (unlike 274a.12© aliens, for example) are work authorized incident
to status (i.e upon INS-issued proof of status). However, the public has
not been formally advised of this interpretation.

7. Some K-1 aliens who are unaware of this interpretation apply for EAD's
at INS Service Centers, where the processing period of 90 days essentially
eviscerates the work authorization and the document may arrive after the
fiance(s)'s status has already changed to spouse. Some K-1 aliens are
issued EAD's at INS field offices. Some are issued Forms I-94 stamped
"employment authorized." This varies from area to area within the US.

8. An EAD is automatically invalidated if the status which entitled the
alien to the employment authorization ceases, whether or not the EAD has
expired.

jim345

Thank you all for your helpful input on a confusing topic.

The thing is, my fiance has a job lined up. They're relatively patient but I fear they won't wait forever.

So, what is the best way to start working as soon as possible? And how soon is likely? Are we right to think 3 months or so?


- Get EAD at POS, then have apparently large gap when EAD expires and the interim EAD is available. With no EAD, would have to stop work.

- Get married quickly, and get interim EAD, and then start.

Thanks again

andrea874

Combine the two... Get EAD at POE for 90 days... get married quickly, mail off your AOS/EAD applications, get EAD or interim EAD after 90 days... theoretically you should only have a few days worth of a gap between EAD's that way, assuming you get married/mail off your applications like the day after you arrive

Rete

Please let us know where this rule exists. It has never been talked about in this forum before that the 90 day clock is stopped while you are processing for the biometrics. Would really like to know where this comes from.

By your reply are you saying that the beneficiary of the I-765 will never reach day 91 since the clock stops the moment they do their biometrics for the card itself?

The rule of thumb is exactly as outlined by the OP's original posting with my thinking being that it 90 day interim time clock "starts" on the date the petition is received, not the date of receipt of the I-797.

Rete

Rete

Wish you knew as well as I don't agree with point #5 although I have seen people post this on occasion. Your K-1 is valid for 90 days regardless of when you marry during the 90 day period after entry. If it became invalid on the day of marriage then if one did not file for AOS in a timely manner, then it would also mean that overstay would start from the day of the marriage and not the day after expiration of the K-1. If it works for one issue, it works for the other.

Folinskyinla

Hi:

It is NOT the "rule", but it is the practice of CIS. Personally, I think the practice is contrary to the regulations and CIS has imported the practice from the asylum arena. In asylum, there IS a regulation regarding the "clock" on eligibility for EAD's.

There are times that DHS & EOIR people will unconscously import rules from other areas. [Private lawyers sometimes do this too. ].

I DID mention this at least once before. I have noted that many people on this list don't care about the actual law, but are more interested on what happens. If, as so often happens, the DHS has a "policy" not sanctioned by law, it might as well be "law" to the ordinary person. [Our office has gotten notices describing action pursuant to a "policy" of CIS to break the law. I kid you not].

ian-mstm

Well, I do have the occasional lucid moment of truth mixed in with many not-so-lucid moments of cynicism!

Ian

jim345

Thank you all for your input. So, is the consensus that it is okay for us to:

1. Enter JFK, get EAD stamp
2. Apply SSN
3. Get married approx. 2 weeks later, and file all paperwork
4. Start work 1 month after POE
5. After 90 day EAD runs out, stop work temporarily (1 month?)
6. 90 days after NOA (plus biometric delay) apply for interim EAD which should get the same day

Is this all okay and correct??

My fiance has a stipend, by the way, for a fellowship with a research institute (actually part of the federal govt -- not sure if this will make things worse or easier!?) which may come in the form of a single lump sum. If so, how would that effect this employment gap? Technically, during the gap, she gets no money anyway (although the stipend is pro-rated for a certain length of time).

bionomique

I recognise this too, it was a response someone received from the USCIS Office of Business Liason.