Knight

Hi there,

I've pretty much got myself a job set up thanks to a friend of my OH, working in a software house.

At the moment, it's understood that I probably won't have my 1 year EAD until Feb '08 at the soonest (moving over and getting married in November, and applying for AOS the day the marriage certificate arrives).

In passing, I mentioned the possibility of being eligible to work in the first 90 days of being in the country due to my K-1 visa, and such I've been told I should do a bit more reading into it, and see what the rules are, as it could open a window of me being hired sooner and then given time off if needed during the gap between the I-94 expiring and the 1 year EAD being issued.

Now, I am not 100% on the information that the I-94 holds (and I can't for the life of me find a version of the form online).

I know that I-9 lists a number of documents that can be submitted to an employer to verify employment authorisation, and one of these is an I-94 "indicating unexpired employment authorisation".

Would it be correct to then assume that the I-94 I will get when arriving on my K-1 visa (so long as it's unexpired) will be valid against that I-94 criteria, given the information found in https://s044a90.ssa.gov/apps10/poms..../0100203500#c1 which states "The following sections list nonimmigrants, by alien class of admission codes, who are authorized to work in the U.S. without specific authorization from DHS. The person’s I-94 will not have the DHS employment authorization stamp and the alien will generally not have an EAD."

I've seen past discussions on this, and one comment I remember was meauxna saying this basically amounted to a K-1 being able to apply for a SSN, not really showing their eligibility for work.

So, would this be legal for an employer to hire me based on my I-94 before it expires, as long as that I-94 indicates I am here as a K-1 classification alien?

ian-mstm

The I-94 is simply an arrival/departure record. It has nothing to do with work authorization... which is why it isn't included on the I-9. It shows only when your stay expires and (usually) what visa you are using.


A K-1 beneficiary *is* employment authorized incident to status... meaning that you *can* work from day one until the expiry of the visa which is 90 days after entry. You will still need a SSN. It sounds though, like your employer is willing to hire you for that duration... and as long as he knows you can only work for 90 days and that you will apply for your SSN about *14* days after your arrival in the US... then you should both be fine.


Let's be clear about this. He's not hiring you on the basis of the I-94. He *is* hiring you based on your K-1 status.

Ian

Knight

Am I reading This I-9 from the USCIS site wrong then? Item 4, in List A of documents that establish both identification and employment eligibility is "Unexpired foreign passport with I-551 stamp or attached Form I-94 indicating unexpired employment authorization."


I can totally appreciate that. I just wanted to see if the I-94 was enough to meet the requirements of the I-9 so the employer could hire me for that 90 day period.

Thanks for the help.

Noorah101

Be aware that the only POE that will give you the 90-day temp work authorization in writing is JFK. If you need to have this, you must go through JFK. No other POE gives the written message of 90-day temp work authorization anymore.

In my fiance's case, at the JFK POE, they handwrote the note "work authorized until xxxxx (90 days from that date). I believe they wrote that note directly onto the I-94, which is probably why the I-94 is listed as an document. As long as someone at the POE writes the note somewhere - either on the I-94 or in your passport somewhere, you should be good to go.

Rene

ian-mstm

It's not that you're reading it wrong, it's just that for the K-1 visa it doesn't really apply! Either way, you *are* authorized to work from day one and yes, your I-94 in this situation will suffice. The hardest part in all of this is usually convincing the employer that you are authorized to work... but your guy sounds okay with that. Once you do get the EAD, be sure to have your records updated.

If you plan this correctly and marry, for example, the day after you arrive, and file for adjustment the day after that... then your "leave of absence" from work can be reduced drastically to perhaps a week or so. Of course, it's rare that such things work out so nicely... but it has been done successfully with one poster from several years ago, indicating that his EAD arrived a day or two before his I-94 expiry date.

Ian

Rete

It is wonderful that you have a job lined up but I'm curious why you can't wait until you get the one year EAD to start working? Have you saved up for the 3 month wait between marriage and receipt of an EAD or are you both just winging it financially?

meauxna

Separate the two issues:

Employment authorized (EA)

Employment authorization document (EAD)

The K-1 person is EA for their first 90 days. This allows them to get a SS# based on the link you have there. The SS# is useful for a number of things not employment related.

An employer must complete form I-9 with a new hire. To do so, they need to see an EAD.
So, while the K-1 is EA, if they do not have an EAD, they can't be 'legally' hired (bear in mind that not all employers follow the rules about I-9).

K-1s can get an EAD stamp on their I-94 at entry, which gives them an EAD valid for their first 90 days.
The only Point of Entry that regularly gives this stamp to K-1s at this point in time is JFK in New York.
It would be your "I-94 "indicating unexpired employment authorisation". "


Whether or not a bog standard I-94 (without a specific EAD stamp) showing you entered as a K-1 would be sufficient for the employer to hire you is really up to the employer's HR or legal department.
I don't have the citation to hand, but if you want to find the portion of the law where it is written that a K-1 is employemnt authorized, it would be posted in the 'law' section of uscis.gov (there may be a reference to it in the SSA doc.. look for a CFR or INA number). That may be enough to make your employer happy.

Knight

Yeah, I knew JFK was the only place that seems to do this, I just couldn't work out why. I was considering going through my normal flight path when I make the move (using Memphis as my POE) and trying to get someone there to write something into my I-94. I do have the option of arriving into JFK, but it's only got a 2 hour and 10 minute lay over before the next flight to Atlanta. Is that too little time to get through immigration at JFK?


I checked with the company, and although their HR (such as payroll etc) is done by an outsourced company, the hiring and applications is all done internal to the small company I am going to be working with, and the guy who is helping me get the job is key to the admissions process, so that will work in my benefit. Hopefully he will take the I-94 + K-1 visa as proof of eligibility for 90 days after arrival.


Well... the sooner I start working, the more money we have in general. This all came about because my guy at the company said it was a shame I wasn't eligible to work until 03/08 (the date I had said I should have my EAD) because the company had a big piece of work and could do with another body to help out.

We've saved what we can, but I am hoping to leave as much as my cash as I can in my bank to cover my loan payments, as once I am state side, it's going to cost a lot more to make those payments given the weak dollar to the pound at the moment. Plus I'd generally feel better if I was doing something, such as being at work.