I hold a K1 visa, am I allowed to work till my I-94 expires?

[JoeCanuk 3]

Thanks to the person that posted the legal quote. Let's just end this thread with the right answer to the original question.

Yes, a person arriving in the United States on a K-1 Visa is AUTOMATICALLY entitled to work in the US. Regardless of whether the immigration officer stamps their I-94 work authorized or not! Anybody that disagrees, please see the entire thread and look up the facts before posting anything to the contrary and thereby starting this thread over again. Thank you.

Dissenters, here is I Quit's quote again...

This is the law

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.

(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;

Again, the problem is this work authorization is only valid for as long as the K-1 Visa....90 days. So, yes you need an EAD after that.

Dissenters? What? Since you are coming across so forcefully, I may just start this topic up again sometime in the future. Who are YOU to tell everyone else what they can and can't post?

[Johnnie Oz 0]

OK, folks.

Having VERY recently gone through the trouble of landing at JFK to get hold of that hallowed EA stamp on my I-94, I am more than a little confused by these latest developments.

Last summer I read up on this and decided that since the K1 was work authorized, all else would follow. I was then "edu-ma-cated" by the powers that be and came to believe that while this may be the case, without a PoE stamp OR an EAD, this would not make one bit of difference.

The employer filling out the I-9 form needed to verify eligibility and thus had to see either the stamp on your I-94 OR the EAD. I tried twisting and turning till I turned blue, but to no avail. The logic of those posters was impeccable. Yes, the K1 is automatically work authorized but due to illogic of the bureaucracy maze that fact is not enough, you need further proof.

Fine. Now I have it. Right here on my I-94. But lo and behold, suddenly there are new rules. A new I-9 and to quote rebeccajo

"And since the new I9 has become effective (Jan 1) a stamped I94 is questionable."

Can someone else comment on this?

If this is true, I might as well have flown straight to LA.

Those of us choosing the K1 route have our reasons, expediency, personal etc. But the fact that this visa is work authorized makes sense, and helped us make this decision.

The fact that this is so convoluted or gray is totally pathetic. As is the fact that in 2007/08 new rules are suddenly applied to changes in the law dating back to 1996!

Holy backlog, Batman!

[rebeccajo 14]

From the website of a law firm specializing in immigration:

"The Form’s instructions are also now clearer with respect to the acceptability of a foreign passport and I-94 card, which have always been acceptable only if the I-94 documents employment authorization for the employer completing the I-9 (for example, H-1B status based on a petition filed by the employer)."

http://www.klaskolaw.com/client-alerts.php...view&id=109

Edited January 7, 2008 by rebeccajo

[Johnnie Oz 0]

From the website of a law firm specializing in immigration:

"The Form’s instructions are also now clearer with respect to the acceptability of a foreign passport and I-94 card, which have always been acceptable only if the I-94 documents employment authorization for the employer completing the I-9 (for example, H-1B status based on a petition filed by the employer)."

http://www.klaskolaw.com/client-alerts.php...view&id=109

OK, so you can read the firm's legalese in one of at least two ways:

Either this means that K1s with foreign passport and EA stamped I-94 were NEVER really allowed to work, since they do not meet the H1-B employer specific criteria.

OR

K1s are still eligible to work since they always were.

I lean towards the latter. I do not see any employer specific criteria as applicable to K1s on the law firms site or on the I-9. That only applies to the H1-B, a visa that has employer specificity baked into it.

Conversely, K1s are "generally" work authorized. Witness, the info on the back of my I-94:

"NYC 62, Employment Authorized, Date> 12/30/07 - 3/29/08"

No need for a specific employer, I am eligible to work for ANY employer "completing the I-9", to use the law firm's language.

So rebeccajo, why are you no longer convinced that the JFK EA stamp is enough? I do not gleen this from the new I-9.

cheers

[Johnnie Oz 0]

The form itself may be worded to give the impression of a grey area, but instructions to employers are abundantly clear. To be employed without an official DHS work document, the non-immigrants status must be 'employer specific'. A K1 has no such privelege.

http://a257.g.akamaitech.net/7/257/2422/01...pdf/07-5790.pdf

Here's another link if there still a question in readers minds:

http://www.usdoj.gov/crt/osc/htm/facts.htm#docs

Not sure that I would go by the DOJ civil rights division lingo.

The language in the Federal Register you link to is a little more alarming:

"The List A document entitled, ‘‘unexpired foreign passport

with an attached Form I–94 indicating unexpired employment authorization,’’

has been replaced by ‘‘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.’

Still, I think one could argue that my unexpired I-94, with my name and my endorsed K1 status on it, authorizes me to work for ANY employer. That is the nature of the K1.

If my status was H1-B than it would only authorize me to work for one specific employer listed on the I-94.

I humbly suggest this is the case. Otherwise it is now impossible for a K1 to work before receiving the EAD, ie during the first 2-3 months and that would be a change of policy. Then the visa should no longer be called work authorized. As it is, the K1 admission class is only valid for 3 months following entry. Afterwards, while waiting for AOS we are no longer K1s, but waiting for AOS. So calling the K1 work authorized (unless my interpretation above rings somewhat true) would be a major stretch.

[rebeccajo 14]

Follow what I have done in wrestling with this - read the I-9 really well.

A person needs to have either:

ONE document from list A.

Form I766 (EAD) is on the list.

An unexpired passport bearing work authorization for a specific employer is also on the list. A K1 visa doesn't grant work authorization for a SPECIFIC employer.

Since a K1 has neither of these documents, they need TWO items. One from list B and one from list C.

A K1 likely will not hold an acceptable ID document. They may have a work authorization stamp on their I94, but their passport isn't acceptable ID proof!

Here's a PDF for ya that's enough to make you go blind - and not like your mama warned you about....

http://www.uscis.gov/files/nativedocuments/m-274.pdf

Edited January 8, 2008 by rebeccajo

[Johnnie Oz 0]

Thanks. Had a look at the handbook and there is evidence to support the specific employer claim. But there is still room for doubt.

I mean, why did I receive that EA stamp on my I-94 on Dec 30, 2007? To make me feel good?

Has the new I-9 policy made this pointless? This would be kinda crazy, no?

In other words, before the new policy went into effect, with the following wording on the I-9 "‘‘unexpired foreign passport with an attached Form I–94 indicating unexpired employment authorization’’ getting the JFK EA stamp was the only way to prove the right to work to an employer PRIOR to receiving an EAD?

Now, however, even this is not enough. As if it wasn't bad enough that only those coming through JFK and random land crossings would be eligible.

So the K1 work authorized visa is not, in fact NOT work authorized. We are, however, work authorized when we apply for permanent residency. The same as if someone had married while on a student or other visa and then adjusted status. Again, calling the K1 work authorized makes little, if no, sense.

Over on another thread, I found this explanation more convincing. Maybe because I prefer it...

But it would make more sense IF they haven't made it MORE difficult for K1s to work than previously. And in fact, they realized that requiring a JFK type stamp was redundant since the K1 is work authorized as a class of admission. A H1-B needs to have a specific employer listed on the I-94. This is not only not needed for K1, but is naturally a non-sequitur. How many other non employer specific work authorized almost immigrant visa classes are there? Just the K1...no? Not even the K3 is work authorized in the same way.

YuAndDAn, JOhnAndMarlene, anyone???

[Johnnie Oz 0]

In addition, your interpretation would mean K1s effectively cannot work until they are married and have applied for AOS and the EAD. Again, what is the point of my being work authorized on my I-94 from the date of entry?

I though the spirit of the K1 was more like: live together for a little while, get SSN, get settled, work a little, get married and then file for AOS.

thanks for your patience!

[rebeccajo 14]

LOL.....Johnnie you crack me! "Spirit" of the K1....!!!

I almost had to clean up my chair.

The government isn't picking on K visa recipients. The 'work authorized' part has been - um - overlooked?

This clarified I9 form wasn't 'clarified' with family based immigration in mind. It was tooled to help stop the flow of illegal work in our country. It makes it tougher (by requiring a US government ID as listed in Column B of the I9) for an illegal entrant to meet the criteria of 'legal authorization' - most EWI's don't have any state ID since they are flying under the radar.

Column A makes it easier for those who are work authorized to be identified. Their documents are clearly defined. And it makes it clear now (to employers who might have been confused) that the employer-specific visa of their skilled immigrants IS enough proof for them to go to work immediately and without 'renewals' of that authorization by the service.

A K non-immigrant always required a document issued by the service to work. And the code does state they ARE work authorized with such a document. I-9 criteria, however, says they don't have the proof of it. Why? Because somebody forgot! They were too busy worrying about the illegals.

Alas. It is a foible. The courts will have to sort it, unfortunately. Or Congress.

[I'm Gone 60]

Thanks so much guys. I didn't get the stamp* so I guess I'm not legal to be on payroll.

Anyway....I read somewhere and it says that K1 can apply for SSN two weeks after entry. So if I do that now, would I have to apply for ANOTHER SSN after I get married, or the SSN that I am about to apply will suffice. OR I should just wait till after I get married to apply for SSN. BUT then I read somewhere that someone kinda got into complications when they apply for SSN after marraige.

You will only be assigned one SSN. It's the name on the card that will change if you apply after getting married. New card same number. I would apply ASAP to get the SSN ASAP and worry about the name change later. The number is going to be useful no matter what the name is on the card.

[JoeCanuk 3]

rebeccajo, isn't a passport considered valid ID? Or the visa itself? It was sufficient to get a drivers license in Indiana.

[rebeccajo 14]

rebeccajo, isn't a passport considered valid ID? Or the visa itself? It was sufficient to get a drivers license in Indiana.

Well, it seems that way to you and I.

But the I9 specifically states an ID issued by a government within the US.

So what can get you a drivers license may not be enough to allow you to legally work.

[tmma 467]

RJ, are you not ready to at this subject?...

...and I am at "spirit of K-1".

[rebeccajo 14]

Tear my hair out? Nah.

It's an old subject but now it's got a new wrinkle.

RJ, are you not ready to at this subject?...

...and I am at "spirit of K-1".

[Johnnie Oz 0]

RJ, are you not ready to at this subject?...

...and I am at "spirit of K-1".

Dunno where when I came up with the "Spirit of K1" Rush-inspired riff.

Not sure why anyone would just yet....

This thrilling thread is about the new I-9 form, and the new employer handbook. New rules, like Bill said...

And there appears to be room for a legit debate on whether this makes either

a) easier for K1s since the new guidelines state that we need to show a "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" as opposed to previously an i-94 "indicating unexpired employment authorization". The latter/older was only available to those with a JFK style POE EA stamp, while the former/newer applies to all "endorsed" with K1 status, whether or not they have a stamp on their I-94.

OR

B) harder for K1s since there is room to interpret the new guidelines as being employer specific.

Guess it depends on how competent we think the government is

rebeccajo is of the opinion that K1s are the unintended "victims" of a 1996 ICRA inspired I-9 (2007!!!) form change. Many employers may well lean this way.

Others, myself included, tend to argue that any alien with non-immigrant status now "only" needs to present passport and unexpired I-94 that endorses one of SEVERAL visa statuses. So e.g. H1-B I-94's will have a specific employer on it, that is what the back of the I-94 is for. But K1s do NOT need this since this status is NOT employer specific. As we all know, this apparent advantage for K1s is kinda negated by the limited validity of the status after which we wait for EAD and then GC.

As long as we can prove that the K1 class is work authorized (should be possible any number of ways) then the passport plus I-94 should cut it.

makes sense to me.

Spirit of Oz