TracyTN

Wanted to put a nodding smiley but there isn't one!

ian-mstm

Then the employer is ignorant, and needs to be educated.

Ian

TracyTN

I agree, Ian. But given how difficult it can be to convince even SSA of their own rules, I shudder to imagine how hard it would be to convince individual employers about it - esp. ones who have no experience whatsoever with immigration matters.

ian-mstm

This may seem to be nothing more than semantics, but a K-1 does *not* need an EAD to work. The only reason he needs an EAD is to show proof that he has authorization. It goes back to the word "evidencing".

Ian

ian-mstm

Yes, it'll probably be difficult, but not impossible... but until people start educating employers, employers will continue to deny employment to those who are duly authorized to work. Most employers would rather know the correct rules to apply in these sorts of situations... they don't want to get caught up in a federal law suit.

Ian

Knight

Why? Why don't they?

CFR8.274a.12 says that K1 holders and their children must apply for a document evidencing their work authorization status.

The only documents that apply to a K1/2 that would evidence their status are an (a)(6) stamp from a POE or an (a)(6) category EAD card.

Why don't K1 holders have to have a document evidencing their work authorization status? Which part of the CFR section excempts them from it?

I understand that they can work, but to be able to work they need the evidence. That's how the I-9 works.

TracyTN

I never said it would be impossible, nor did I say that no one should try.

What I AM saying is that I don't blame people who would rather wait and get their EVIDENCE of work authorization before applying for jobs. I wouldn't want to start out my relationship with a potential employer by having a possibly awkward exchange with them about their immigration ignorance.

But, horses for courses!

Rete

You got it!

Read what you wrote. Think about it? What does it tell you?

Simple: K1 have the right to work and SSA knows this. The K-1 holder does NOT need an EAD to prove this. Yea! You are catching on. Now go educate the Department of Labor.

Knight

It tells me that K1 holders are allowed to work, and because they are allowed to work the SSA will happily give them an SSN. This has nothing to do with them actually getting a job.

Walmart is still going to ask for evidence of your authorization (and CFR says you must get documentary evidence of your authorization to work), even if you have that authorization inherit from your status. If you don't have that evidence, you can't fill out an I-9 and you don't get to stack shelves.

meauxna

I don't see that that has been proven conclusively!

The wording in the CFR is confusing and it seems that even lawyers disagree on how to translate it into English.

There has been no practical, legible definition of 'incident to status' that I've been able to find.
Of course, my motivation for finding it is limited, so I look when and where it pleases me.

ian-mstm

Really? I have the I-9 right here. Here y'go...

Documents that Establish Both Identity and Employment Eligibility
5. An unexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for the employer.

Seems to me, a passport bearing an I-94 and a K-1 visa fulfills that requirement!

Ian

Knight

But to seek employment you need to apply to USCIS for a document that proves your authorization. You've not done that if all you have is a K1 visa and an I-94 that doesn't have an EAD stamp.

meauxna

Really? Are you sure?
It has been suggested that "work for THE employer' means a specific listed employer, such as an H-1B or L-1A would have.

Knight

But to seek employment you need to apply to USCIS for a document that proves your authorization. You've not done that if all you have is a K1 visa and an I-94 that doesn't have an EAD stamp.

The items in List A if I-9 is explained in CFR.274a.2 (Verification of Employment Eligibility)

(A) The following documents, so long as they appear to relate to the individual presenting the document, are acceptable to evidence both identity and employment eligibility:

( 1 ) United States passport (unexpired or expired);

( 2 ) Alien Registration Receipt Card or Permanent Resident Card, Form I-551;

( 3 ) An unexpired foreign passport that contains a temporary I-551 stamp;

( 4 ) An unexpired Employment Authorization Document issued by the Immigration And Naturalization Service which contains a photograph, Form I-766; Form I-688, Form I-688A, or Form I-688B;

( 5 ) In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, an unexpired foreign passport with an Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I-94. (Paragraph (b)(1)(v)(A) Amended 9/20/93 at 58 FR 48775 did not become effective until 3/20/96; 60 FR 14353 ) (Revised effective 10/4/96; 61 FR 46534 ) (Revised 9/30/97; 62 FR 51001 )

That certainly doesn't cover a K1 holder with their unstamped I-94.

ian-mstm

This is on the I-9... so... presumably, you're filling it out in response to a job offer made by a specific employer. IOW "the employer". This is how my minions and I interpret the I-9... y'all can interpret it differently if you want... but it'll make life more difficult for you!

Ian