K-1 EAD Conversation
May 8th 2008, 8:28 am
#16
Twice half his height
Thread Starter
Joined: Jun 2006
Location: Central Mississississippippi
Posts: 443
Re: EAD arrived
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 )
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 )
So K1 holders are work authorized while they are in K1 Visa Holder Status, but must apply for an EAD to prove that authorization. Simply having a K1 visa gives you permission, but you need an EAD to go with it to prove it. That explains what the (a)(6) category is for then, to allow K1 holders to prove their status. Having this EAD is the way you meet the requirements of the I-9 since the INA clearly states that you can't just rely on an I-94 marked with K1 status.
That's cleared things up in my mind a hell of a lot. I'll take actual INA code over most things when it comes to my immigration related rights and benefits.
May 8th 2008, 8:29 am
#17
Joined: Apr 2002
Posts: 35,082
Re: EAD arrived
heh, this is beautiful. I googled "Inspector’s Field Manual" to snoop and the first hit is from a long-departed group member.. 
Now, where is the updated version...
Now, where is the updated version...
May 8th 2008, 8:31 am
#18
Joined: Apr 2002
Posts: 35,082
Re: EAD arrived
Well that's changed my views on it.
So K1 holders are work authorized while they are in K1 Visa Holder Status, but must apply for an EAD to prove that authorization. Simply having a K1 visa gives you permission, but you need an EAD to go with it to prove it. That explains what the (a)(6) category is for then, to allow K1 holders to prove their status. Having this EAD is the way you meet the requirements of the I-9 since the INA clearly states that you can't just rely on an I-94 marked with K1 status.
That's cleared things up in my mind a hell of a lot. I'll take actual INA code over most things when it comes to my immigration related rights and benefits.
So K1 holders are work authorized while they are in K1 Visa Holder Status, but must apply for an EAD to prove that authorization. Simply having a K1 visa gives you permission, but you need an EAD to go with it to prove it. That explains what the (a)(6) category is for then, to allow K1 holders to prove their status. Having this EAD is the way you meet the requirements of the I-9 since the INA clearly states that you can't just rely on an I-94 marked with K1 status.
That's cleared things up in my mind a hell of a lot. I'll take actual INA code over most things when it comes to my immigration related rights and benefits.
And read this; the next to last para may explain the I-94 stamping.
http://tinyurl.com/493qp5
Edit to add: This is the original USCIS version of the above chart.. searching too fast.
http://www.uscis.gov/files/article/EIB01.pdf
(ps, remember when I told you I'd had 'thoughts' about this? lol)
Last edited by meauxna; May 8th 2008 at 8:53 am.
May 8th 2008, 8:33 am
#19
Twice half his height
Thread Starter
Joined: Jun 2006
Location: Central Mississississippippi
Posts: 443
May 8th 2008, 8:40 am
#20
Twice half his height
Thread Starter
Joined: Jun 2006
Location: Central Mississississippippi
Posts: 443
Re: EAD arrived
Don't get too far ahead.. read that last link I posted.
And read this; the next to last para may explain the I-94 stamping.
http://www.uslegalimmigration.com/cg...91483786,30705,
(ps, remember when I told you I'd had 'thoughts' about this? lol)
And read this; the next to last para may explain the I-94 stamping.
http://www.uslegalimmigration.com/cg...91483786,30705,
(ps, remember when I told you I'd had 'thoughts' about this? lol)
The link you posted about the I-94 stamping doesn't work.
I don't look forward to the EAD wiki article, lol.
May 8th 2008, 8:44 am
#21
Joined: Apr 2002
Posts: 35,082
Re: EAD arrived
(thank you aussiewench for posting this!
"AILA member Charles "Chuck" Miller (a former INS attorney) managed to obtain much of the current IFM through a FOIA request. (Ongoing; he is still negotiating with CBP for further releases.) "
CBP Inspector's Field Manual
(k) Fiancé(s) of U.S. Citizens and Nonimmigrant Spouses of U.S. Citizens.
(1) Classification: K-1 Fiancées and fiancés of U.S. citizens.
Documents required: Valid passport. Nonimmigrant visa (K-1) (including Canadians and others who would otherwise be exempt a visa). Valid petition (Form I-129F).
Qualifications: Alien must be coming to conclude a valid marriage to the citizen petitioner within 90 days. All nonimmigrant grounds of inadmissibility apply.
Terms of admission: Admit K-1 for 90 days.
Notations on I-94: Front: K-1, date 90 days from day of admission. Reverse: “A” number and FCO code.
Special notes:
(A) Employment Authorization. All K aliens, including dependents, may be issued an EAD under 8 CFR 274a.12(a) for a period of 90 days.
(B) Handling the K-1 petition. Verify the complete address of the intended place of residence as shown on the face of the I-129F. Stamp the back of the petition to reflect the admission of the beneficiary and any accompanying children. If there are accompanying K-2 children, circle their names in item #11 of the petition and note beneath the admission stamp the following: “includes children whose names are circled.” Forward the petition and supporting documents to the files control office having jurisdiction over the K-1’s intended place of residence.
"AILA member Charles "Chuck" Miller (a former INS attorney) managed to obtain much of the current IFM through a FOIA request. (Ongoing; he is still negotiating with CBP for further releases.) "
CBP Inspector's Field Manual
(k) Fiancé(s) of U.S. Citizens and Nonimmigrant Spouses of U.S. Citizens.
(1) Classification: K-1 Fiancées and fiancés of U.S. citizens.
Documents required: Valid passport. Nonimmigrant visa (K-1) (including Canadians and others who would otherwise be exempt a visa). Valid petition (Form I-129F).
Qualifications: Alien must be coming to conclude a valid marriage to the citizen petitioner within 90 days. All nonimmigrant grounds of inadmissibility apply.
Terms of admission: Admit K-1 for 90 days.
Notations on I-94: Front: K-1, date 90 days from day of admission. Reverse: “A” number and FCO code.
Special notes:
(A) Employment Authorization. All K aliens, including dependents, may be issued an EAD under 8 CFR 274a.12(a) for a period of 90 days.
(B) Handling the K-1 petition. Verify the complete address of the intended place of residence as shown on the face of the I-129F. Stamp the back of the petition to reflect the admission of the beneficiary and any accompanying children. If there are accompanying K-2 children, circle their names in item #11 of the petition and note beneath the admission stamp the following: “includes children whose names are circled.” Forward the petition and supporting documents to the files control office having jurisdiction over the K-1’s intended place of residence.
May 8th 2008, 8:48 am
#22
Joined: Apr 2002
Posts: 35,082
Re: EAD arrived
The reason I thought refugee/asylee page would be relevant is that they are listed as 'incident to status' under the same section of the CFR. Not definitive, but made me wonder if I had it wrong yet again.
May 8th 2008, 8:53 am
#23
MODERATOR
Joined: Apr 2003
Location: Phoenix, Arizona
Posts: 58,687
Re: EAD arrived
To me, it says they can. If someone is eligible to apply for an EAD, it must mean they have work authorization, and just need the EAD to prove it. Maybe. Sort of. LOL
Rene
May 8th 2008, 9:34 am
#24
Twice half his height
Thread Starter
Joined: Jun 2006
Location: Central Mississississippippi
Posts: 443
Re: EAD arrived
This still doesn't clear it up for me. OK, they may be issued an EAD for 90 days. Does it mean they can still work without the EAD for 90 days, if they don't need to do an I-9 (i.e., if they don't need to prove anything)?
To me, it says they can. If someone is eligible to apply for an EAD, it must mean they have work authorization, and just need the EAD to prove it. Maybe. Sort of. LOL
Rene
To me, it says they can. If someone is eligible to apply for an EAD, it must mean they have work authorization, and just need the EAD to prove it. Maybe. Sort of. LOL
Rene
The manual says they may be issued with a temporary EAD. In my mind this is referring to the temp EAD stamp that you get at JFK. The CFR is still correct in saying that you must have an EAD to take up work. That can either be the stamp that you may be issued with, or the card you appy for with I-765.
I guess if you're self employed, you don't need an EAD card because you don't need to establish employment authorization as per the I-9
May 8th 2008, 9:51 am
#25
Joined: Mar 2003
Posts: 68,280
May 8th 2008, 10:17 am
#26
Joined: Apr 2002
Posts: 35,082
Re: EAD arrived
Did I beat them ....
http://britishexpats.com/forum/showt...illerlawoffice
http://britishexpats.com/forum/showt...illerlawoffice
Now, Jack Bauer would have had it at the first of the year...
May 10th 2008, 6:35 am
#28
Joined: Apr 2002
Posts: 35,082
Re: EAD arrived
Jack Bower tolerates me, and that's all I care about!
I stumbled over this while looking at something completely unrelated. See how it folds in ... ? Unfortunately, it's just a recommendation, but it does explain a few things.
RECOMMENDATION FROM THE CIS OMBUDSMAN TO THE DIRECTOR, USCIS
March 20, 2006
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.
There is no evidence of employment authorization for a K-1 prior to adjudication of the EAD based on the K-1 nonimmigrant visa. Additionally, there is no continuous evidence of employment authorization where the individual’s EAD expires at the end of his/her K-1 stay and before a new adjustment-based EAD is adjudicated and issued.
Thus, there is often a gap in evidence of employment authorization for K-1s both prior to issuance of the EAD based on the K-1 and when the K-1 and attendant EAD expires prior to issuance of the EAD based on the adjustment application. USCIS could address this gap by 1) amending 8 C.F.R. §274a.12 so that K-1 nonimmigrants, who are work authorized incident to status, would not need to apply for an EAD;6 and 2) providing for an automatic extension of the first EAD if the adjustment application is timely filed.7
5 See DHS Delegation of Authority to USCIS for Employment Authorization 0150.1, March 1, 2003; compare with DHS Delegation of Authority to CBP (no such delegation of authority to provide for employment authorization is granted to CBP).
6 While in most instances where the nonimmigrant classification and attendant employment authorization are not specific to the petitioner, as opposed to open market employment authorization, the regulations require that the foreign national apply for an EAD. However, this is not the case with asylees, and there would appear to be no rationale for the EAD requirement for K-1s. See generally supra Note 1.
7 To address this K-1 employment authorization gap, USCIS could look to the so-called 240 day rule, under which foreign nationals in nonimmigrant visa status who timely file for an extension are automatically given authorization to work for 240 days after initial expiration. 8 C.F.R. §274.a12(b)(20). In the case of K-1s, upon the filing of the adjustment application and the EAD application, the existing employment authorization could continue for a period of 90 or 120 days.
I stumbled over this while looking at something completely unrelated. See how it folds in ... ? Unfortunately, it's just a recommendation, but it does explain a few things.
RECOMMENDATION FROM THE CIS OMBUDSMAN TO THE DIRECTOR, USCIS
March 20, 2006
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.
There is no evidence of employment authorization for a K-1 prior to adjudication of the EAD based on the K-1 nonimmigrant visa. Additionally, there is no continuous evidence of employment authorization where the individual’s EAD expires at the end of his/her K-1 stay and before a new adjustment-based EAD is adjudicated and issued.
Thus, there is often a gap in evidence of employment authorization for K-1s both prior to issuance of the EAD based on the K-1 and when the K-1 and attendant EAD expires prior to issuance of the EAD based on the adjustment application. USCIS could address this gap by 1) amending 8 C.F.R. §274a.12 so that K-1 nonimmigrants, who are work authorized incident to status, would not need to apply for an EAD;6 and 2) providing for an automatic extension of the first EAD if the adjustment application is timely filed.7
5 See DHS Delegation of Authority to USCIS for Employment Authorization 0150.1, March 1, 2003; compare with DHS Delegation of Authority to CBP (no such delegation of authority to provide for employment authorization is granted to CBP).
6 While in most instances where the nonimmigrant classification and attendant employment authorization are not specific to the petitioner, as opposed to open market employment authorization, the regulations require that the foreign national apply for an EAD. However, this is not the case with asylees, and there would appear to be no rationale for the EAD requirement for K-1s. See generally supra Note 1.
7 To address this K-1 employment authorization gap, USCIS could look to the so-called 240 day rule, under which foreign nationals in nonimmigrant visa status who timely file for an extension are automatically given authorization to work for 240 days after initial expiration. 8 C.F.R. §274.a12(b)(20). In the case of K-1s, upon the filing of the adjustment application and the EAD application, the existing employment authorization could continue for a period of 90 or 120 days.
May 10th 2008, 10:13 am
#29
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: EAD arrived
I'm just sure he wuvs you!
Interesting - their intention appears to be that the K-1 can work (continuously) from day 1 - they just have their regulations in a knot. Figures.
Interesting - their intention appears to be that the K-1 can work (continuously) from day 1 - they just have their regulations in a knot. Figures.
