K1and EAD

[Oz2US 0]

Hello there!

Recently I proposed to my fiancé (she's a US citizen and I'm Australian) and we're about to embark on a very long process of getting my K-1 visa. Obviously this can take up to six months, and I have decided to come and visit her while this is being processed. I have a few questions:

1) Can I enter under the Visa Waiver Program and inform immigration when I arrive in LAX that I am waiting for my K-1 visa to be processed and that I will return home to get it via my consulate (I'm based in Sydney, Australia)when the interview is set to be done?

2) While visiting my fiancé I intend to look for work. If I am successful in getting a job there, how does the EAD work? Would it affect my Visa Waiver? And what would that mean for the K-1 visa?

I'll have more questions, and thank you to all in advance for any help you can give me!

Many thanks!

[UKGirl123 24]

The EAD is for inbetween arriving in the US once you visa is approved and AOS.

When you sign your visa waver you declare that you will not work. If you do work on the visa waver you are in breach of your visa and your k1 could be denied because of this.

Also visa waver only allows you to stay for 90 days in the usa. If you over stay this you face anything from 3 yrs (i think this is the min) up to a lifetime ban from the USA depending on the length of the overstay

[MrStrain14 2]

Congratualtions! Welcome to VJ, hope we can be of help.

Onto the bad news; I agree with Angel, unfortunately you can't work on the VWP and you can only stay a maximum of 90 days. In response to you questions:

1) Yes, but make it clear you plan to leave within 90 days, rather than whenever the embassy is ready to interview you. You should take proof of ties to OZ, i.e. letter from work, mortgage/rent statements etc to show that you are planning to return to Australia within the 90 day limit, and make sure you DON'T overstay.

2) The EAD is issued once you arrive in the US under the K-1, get married, and apply for AOS. You can't get one on a VWP, so if you do go to visit, you cannot work.

It's a long journey, and frustrating, but I wouldn't risk overstaying OR trying to work on a VWP. Sorry dude!

[Oz2US 0]

Thank you for your replies, a quick follow up:

Is there anything against finding and applying for work, and upon successful job offer, going to immigration to say that I have been given a job offer and to get the correct visa?

This is on the VWP, btw.

Edited May 8, 2010 by Oz2US

[NigeriaorBust 4,087]

There is a long process that a company has to go through to apply for a work visa for you. It is not something you can ask for and receive. They have to show that you can fill a position that a regular USC is unable to fill.

[Oz2US 0]

So either way,the wait would be equal to that of the K-1 visa. Its a shame, I was hoping to go over there and get things started like a job, a place to stay. You know, build a life with my fiancé. I guess we really will have to wait until we get married for it all (not that I'm complaining!)

[JimVaPhuong 4,863]

Thank you for your replies, a quick follow up:

Is there anything against finding and applying for work, and upon successful job offer, going to immigration to say that I have been given a job offer and to get the correct visa?

This is on the VWP, btw.

Look here for a description of the work related immigrant visas:

http://travel.state.gov/visa/immigrants/types/types_1323.html

Here are descriptions of the various work related non-immigrant visas:

http://travel.state.gov/visa/temp/types/types_1271.html

Understand that work related visas are rationed, and they can be time consuming and difficult to get. Most of them require an employer to sponsor you, at their expense, and to demonstrate that they have tried to find a US citizen or legal resident to fill the position. Many of them also require advanced skills or knowledge. In some categories, all of the available visas are snatched up within days of them becoming available each year, leaving everyone else to wait another year to try again. It's not unusual to wait for years to get some types of work visas.

Bear in mind that unemployment is at record highs in the US now. Unless you have some exceptional skills or knowledge that is in short supply in the US, you may find this path to be pretty difficult right now.

A K1 would probably be a lot faster.

[alex and astrid 38]

Thank you for your replies, a quick follow up:

Is there anything against finding and applying for work, and upon successful job offer, going to immigration to say that I have been given a job offer and to get the correct visa?

This is on the VWP, btw.

It's very hard to get a work visa. As far as I am aware, your prospective employer pretty much has to prove that there is no one in the US that is available to do that job. So if you are something like a specialized surgeon you are a pretty good chance, but for something general, I don't think you will get it. Also remember that you can not adjust status from the Visa Waiver Program. You would still need to go back to Australia to get this visa.

As someone who has been there and done that with the K1, it really does not take that long to get from start to finish. For me, we were engaged April 2009 (in the US), I went back to Australia in June 2009, we filed for the K1 that August. We were approved in the October, had the visa in December, back in the US in January, married in February, filed for AOS in March. Green card in hand May 1. So from the NOA1 for the K1 to getting the Green Card, nine months. We could have done it even faster, but we had our own timeline worked out.

I don't think there is anything against scouting for work and seeing what is out there while you are visiting, but I really think it's a waste of time.

When you enter the US under the VWP, make sure you bring HEAPS of evidence showing that you don't intend to stay. Bring the evidence that you have applied for the K1, a letter from your landlord saying that they still live there, letters from your employer saying they expect you back, or enrollment at Uni.

With the EAD, it's pretty much what the others have said. You can apply for it when you AOS, which is what most people do. You can also apply for it when you first enter the country on the K1, but you have to pay to file for it, and since they can take up to three months to be approved and are also tied to your I-94 expiry, it isn't worth it.

[Oz2US 0]

Thanks, I suppose I'll have to tough it out with the K-1 visa process. In the long run, it sounds like it would be for the best.