Knight

note from Moderator: this discussion was split out from this thread: http://britishexpats.com/forum/showthread.php?t=534556


Are you not thinking of the SSA policy that K1 holders are advised to take with them incase they have any trouble? I personally don't trust that SSA policy 100%, especially when it comes to immigration and work authorization as neither of those are dictated by the SSA. The policy states that K2 holders will have an EAD with category (a)(6) and that a K1 won't, but I-765 instructions list category (a)(6) as being for K1 and K2. I'd trust a USCIS form about immigration more than an SSA policy, but that's just me.

If all you have in your passport is a K1 and an I-94 with no stamp then you don't meet the requirements for an I-9 to be legally employed. A K1 (and this is from my understanding of things) is not work authorized just by having the visa, but that their status as a K1 holder allows them to apply for work authorization which is why they have a specific category of EAD application - (a)(6).

In my mind, if the K1 visa was a work authorizied visa (and by the same logic a K2 would be) then there wouldn't be a specific category for an EAD application based on that status.

Tracym

This link (is social security, but discusses work auth) (quotes below):

https://s044a90.ssa.gov/apps10/poms....0!opendocument

nonimmigrant aliens have employment authorization by virtue of their alien classification. Some can work but only for specific employers. Others must apply to DHS for employment authorization

Required evidence for employment authorization is either a Form I-94, Arrival/Departure Record, showing a class of admission that indicates the person can work without specific DHS authorization (RM00203.500C.1.) or an employment authorization document (EAD) (Form I-766 or I-688B).

RM00203.500C.1:

https://s044a90.ssa.gov/apps10/poms....pendocument#c1

K-1 is on that list.

So it appears to me, and it seemed my attorney was saying that, is a K-1 IS authorized without specific DHS authorization.

The problem is, how do you statisfy the employer and the I-9. Which is why my attorney was saying he could write a letter, and that might do.

Your premise of K1 not being authorized because there's a category for the EAD is not correct though - the K1 is only for 90 days - you'd need the EAD after that while waiting for AOS.

Knight

But the SSA doesn't decide who is and who is not work authorized. Just because it's printed on an SSA policy doesn't mean its what USCIS actually allows.

Yes, K1 status is only for 90 days, and EAD category (a)(6) states:
K-1 Nonimmigrant Fiance(e) of U.S. Citizen or K-2 Dependent--(a)(6). File your EAD application if you are filing within 90 days from the date of entry. This EAD cannot be renewed. Any EAD application other than for a replacement must be based on your pending application for adjustment under (c)(9).

The EAD is only good for the duration of the K1, once you file for AoS (or after when your (a)(6) EAD expires) you need to file for a totally new EAD under (c)(9). The fact that there is a seperate category just for people with K1 and K2 status holders surely indicates that to work in this status you need this EAD, and therefore you are not automatically work authorized.

lofty79

This is the way i read it too. I do recall reading somewhere (on a USCIS document) that a K-1 holder is eligible for work authorization - not that a K-1 holder is work authorized.

Tracym

ok, you're referring to the temporary EAD - I didn't realize that, sorry. Again, EAD is the work authorization DOCUMENT - does that make it the actual authorization? Or just the proof of that authorization? I can't be sure.

The government (ssa) documents I quoted below say the opposite.

However, it wouldn't amaze me if the government contradicted itself. I'd still recommend that someone go through JFK and get the stamp if at all possible.

Knight

You've just totally lost me there Tracy, sorry.

meauxna

I know that SSA memo is never going to die, but I am always surprised at the varied interpretations of it.

8 CFR, Code of Federal Regulations

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


(a) Aliens authorized employment 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)-(a)(8), (a)(10)-(a)(15), or (a)(20) of this section, and who seeks to be employed in the United States, must apply to U.S.Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States. <confusing irrelevant to the discussion stuff snipped>
(1) LPRs
(2) temporary resident
(3) refugees
(4) parolees
(5) asylees

(6) An alien admitted to the United States as a nonimmigrant fiancé or fiancee 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; (Revised 8/14/01; 66 FR 42587 )

Tracym

At this rate, I may lose myself

I believe that when, as a K-1 you apply for an EAD based upon the K-1, you are applying for a TEMPORARY EAD, which is only good for 90 days (or until the end date of the K-1). Since it takes some time to grant this, in practice there's really no point, and I don't think anyone does this.

When you get married and apply for AOS, then you are applying for an actual EAD which is for one year.

I'm pretty sure (but not 100% positive) that the above is correct - please someone correct me if I am wrong.

Tracym

Interesting, because (unless I misunderstood him, lots was going on) my attorney seemed to think one could go ahead and legally work without an EAD.

And of course, Keith got the stamp and JFK, so I didn't worry too much about it after that.

Noorah101

You are correct on both these counts, Tracy.

And my interpretation is that a K-1 is work authorized for the first 90 days, whether he has the temp EAD to prove it or not. Problem being that if he does NOT have the temp EAD (either by virtue of the stamp at JFK or a temp EAD card having applied for it after entry), he would have nothing to show an employer to satisfy the I-9 requirements.

Rene

Noorah101

Same here. Sadegh also got the stamp at JFK, but if he hadn't, my understanding was that he could begin work anytime after arrival on his K-1. And since he was self-employed, he didn't have to fill out an I-9.

Rene

Knight

Yes, that's correct. The cat (a)(6) EAD, or the one you get at JFK which I assume is a stamp version of an (a)(6) card, is temporary and only there for the length of your K1 status.

The very fact that it exists and that people who have the status of a "K1 Visa Holder" can apply for it makes it obvious (to me anyway) that people who have the status of "K1 Visa Holder" not automatically work authorized, because they either have to get the stamp OR apply for an EAD card in the category that is correct for their status (ie an (a)(6) card because they are still in "K1 Visa Holder" status). If they were work authorizied from the moment they entered with a K1 visa, why would a category exist? It wouldn't be needed.

Once that status ends, they do have to apply for an EAD under category (c)(9) and then follow normal processing that we all know and love, but that's irrelevant to the work authorization of people who have the status of "k1 Visa Holder".

Noorah101

Maybe it's like a PR whose status does not expire, even if the card does. They are walking around as a PR, without any proof to show.

Maybe the K-1 entrant is like that...walking around work-authorized, but without the formal document to prove it, for the first 90 days?

Rene

Knight

I can see where you're coming from, but the K1 Visa Holder status does expire after 90 days from entry.

meauxna

IMO, the phrase 'incident to status' is what confuses most of us. I know that past discussions have drilled down to what that phrase means.

Now, it could have a specific immigration-law meaning, where the words don't mean what they seem to say at all. It may have a legalese meaning that has no equivalent in plain English.

This is an interesting version of the chart of visa/status types that makes it more plain that K-1s (and other incident to status folk) must apply for the document (EAD): http://www.zneimerlaw.com/lawyer-attorney-1123919.html
It says that K-1s are "Eligible for EAD incident to status"
Where (to me) "eligible" is the key word.

Note how some classes are tied to a specific employer, etc. The K-1 is free to work for anyone *once they have the EAD*.


Just as I was about to make some brilliant conclusion, I read this: http://www.asylumlaw.org/docs/united..._BCIS_memo.pdf

Which at first seems to say two different things, but may say the opposite of what I just said.

It would be easy to say, well, just comply with the I-9 and you have nothing to worry about, except, many people work for themselves, or have an overseas employer where they can do remote work, and a million other possibilities. It would be great to be able to give a reasonable answer to this eternal question.