Calumt

Hi all,

I have been granted a K-1 visa and will be entering on it in 5 weeks time (mid November). In the mean time, I have been applying for jobs in California and have received an offer from a company out there (current start date, 6th Dec).

1. Now, from my reading, I am not actually allowed to accept this position until I received my EAD (around 90 days after application post-marriage), is this correct?
2. However, I am aware that there may be a loophole if I fly in to JFK and obtain an employment authorisation stamp, if I receive this, can I work immediately? (I think I might have read somewhere that this has changed recently, and is no longer valid?)

Has anyone else been in this situation, how you go about this?

Thanks for your help,

Calum

Noorah101

This is correct.

Ugh, I keep retyping this, sorry. LOL

The temp EAD stamp is no longer a valid hiring document on the I-9 form that the employer fills out when you get hired. Whether the employer wants to adhere to the I-9 requirements or not is his own responsibility. If he hires you without proper work authorization according to the I-9, and gets audited, he will be fined. You will be safe, your unauthorized work will be forgiven by USCIS because you have a pending AOS.

Here's a link to the I-9 document, so you know what your employer is supposed to fill out. Well, you fill out some of it, and the employer verifies it. http://www.uscis.gov/files/form/i-9.pdf

Rene

Calumt

Thanks Rene,

As a massive, multi-national engineering firm, it's unlikely that i'll push the 'dodgy' route. So fingers crossed they can keep the offer open for me.

What do you think will be the fastest time I could get my EAD? (Say I arrive 18th Nov, marry on 20th, send off application 22nd?)

Noorah101

If they're that large of a firm, they won't go against the I-9 requirements anyway. I also work for a world-wide engineering firm, and we're very strict on that requirement.

I'd say *typically* it takes about 90 days to get the EAD in hand after filing AOS, but I do believe lately it's taking less time, so I'm going to guess the soonest might be 60 days instead of 90.

Rene

Calumt

Ok great.

Just as a matter of clarification, Can i legally accept the offer, but refrain from working until my EAD comes through? I imagine that will give them more security on my desire to work for them ASAP.

Thanks,

Cal

PS. I'm pretty sure I can study (i.e. LEED AP course) on this k-1, is that your take on it?

Noorah101

I would see what their HR department says about that. Our official offer letters include a specific start date. They cannot give you a specific start date because no one knows when your EAD will come in. I suppose if they can give you an official offer letter which says contingent upon the date you receive work authorization, I don't see any problem signing that...but it would be up to the employer to feel comfortable having you sign such a document.

Yes, you are allowed to study as soon as you enter the USA on your K-1.

Rene

ian-mstm

I may be opening up a can of worms and I know that we've gone over this in the forum many times over the years, but a K-1 is employment authorized "incident to status". While the I-9 may require an EAD, the employer likely won't get into trouble if he hires a K-1 beneficiary. The K-1 has employment authorization... however brief.

Ian

Noorah101

The employer just won't be able to submit an I-9, that's all. And if he gets audited, he's in trouble.

Rene

ian-mstm

The employer may get in trouble for failing to submit an I-9 which is an administrative issue... but he won't get stung for hiring an undocumented worker which is not simply an administrative issue.

Ian

meauxna

Ian, I vigorously disagree on this one; I have put a lot of time into researching it and that conclusion is just not so.
The K-1 (and the *many other* visa types that are also 'incident to status') are eligible to APPLY for an EAD.. not "just work" when they feel like it.
The reason the JFK scheme worked is because the officers there would give an "EAD" in the form of the stamp. I don't know who dreamed up doing that, but it was probably someone's humanitarian attempt to get Ks working sooner.
Why did they not do it for the other immigration statuses (statii?) who are *identically* EA 'incident to status'.. like L-2s?


The K-1 does NOT have employment authorization. They are authorized to apply for an EAD, and indeed there is a specific code for them to do so on I-765. The fact that it takes as long for them to process that application + document as the status is valid for seems to matter not.

I know I have done my part in the past to promote this misinformation, but I'm working just as hard now to correct it.
§ Sec. 214.2(k) Spouses, Fiancees, and Fiances of United States Citizens.

(9) Employment authorization . An alien admitted to the United States as a nonimmigrant under section 101(a)(15)(K) of the Act shall be authorized to work incident to status for the period of authorized stay. K-1/K-2 aliens seeking work authorization must apply, with fee, to the Service for work authorization pursuant to § 274a.12(a)(6) of this chapter.

§ 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.

(a)(6) An alien admitted to the United States as a nonimmigrant fiancé or fiancee pursuant to section



edit: I did mean to add this memo, which further muddies the waters. http://www.uscis.gov/files/pressrele...lees031003.pdf However, form I-9 overrides even the memo by requiring documentation in order to be hired by an employer.

Calumt

Thank you guys so much for your help here.

I have written to my prospective employer and stated that I will have to wait for my EAD to begin work, with the suggestion of me doing my own personal training (be it certification or software) in the potential 60-90 day waiting period.

Can you apply for the adjustment of status (and EAD) on the day I marry? I need to be ahead of the game here. :-)

Cheers

Noorah101

As long as you have the certified copy of the marriage certificate in hand on that day, yes!

Rene

ian-mstm

Well then, I stand... er, sit corrected.

Ian

Rete

This is not correct. You can accept the employment but cannot actually work until you have proof of permission to do so from the USCIS.

It is still valid, however, there is no guarantee that you will get the stamp. One thing to note, however, is that even if you got the guarantee, the permission is only for the time of validity of your K-1 entry which is 90 days. After that you can no longer work until you have the 1 year EAD. The only way to hope that there is no lapse is to marry the day or day after your arrival and file the I-485, I-765 and other documents within a week of the marriage. You might be fortunate in getting the EAD before the expiration of your 90 day K-1 validity entry.

While it seems wise to look for employment before you are even in the States and before you have permission to work, it is can be problematic for the very reason you stated.

Rete

Both mine and Ian's memory on the 90 day EAD and/or work stamp go back 13 years. There is no JFK scheme. It was accepted and approved and commonplace for a decade or more until about three years ago that the K-1 was allowed to work for the 90 days of the validity of their K-1 entry. They are still accorded that privilege, however, now they have to apply for it online and wait until it is manufactured and mailed to them which takes most of the 90 day validity rendering the EAD worthless.

Why the change in policy? Simply when you think about it. First it creates uniformity nationwide for thos entering with the K-1. No one will encounter a POE that doesn't stamp or card, if it is not available at all POEs. And ... and probably more importantly, USCIS can now charge a hefty fee for the privilege whereas prior to this change, the 90 day EAD was free.
Many POE's had a machine that made the EAD card right there. The POE's that did not have the machine were given a stamp to use instead. If the K-1 Beneficiary entered at a POE where they were not given either of those two forms of proof, they need only walk into their USCIS office and get the EAD right there.

Apparently, this proved to problematic for those agents at the POE and USCIS or rather BCIS sent around a memo discouraging this practice of stamping the passport with the phrase allowing the K-1 to work for 90 days. The ability to work on the K-1 for 90 days was never formally rescinded. It was only made more difficult to obtain proof of said ability within the timeframe of the K-1's entry validity.

PS Please note I am not trying upsurp you or your research or your knowledge but putting the employment for a K-1 beneficiary in its proper historical place. The employment issue is the one and the only reason why someone from a first world country such as the UK would use the K-1 rather than the VWP express since whatever the agency called themselves over the last 13 years, the ability to adjust status with a minimal percentage of denials from the use of the VWP Expres. That VWPEx was not availabe for fiancees from the Philipphines or Russia for example and they had no choice but to obtain a K-1 and/or get married and have their USC Spouse start the Immediate Relative Visa process.