EAD stamp needed?

[Kez/JWolf 6]

If you get a temp EAD stamp it does not expire when you get married or on the day you file for AOS.... it expires 90 days from the date of entry... then you are not authorized to work until you get approved for the 1 year EAD that you can file for along with AOS....

Kez

[chryl&jhn 0]

Well, actually we had two immigration lawyers say he was okay to work based on his K-1 status, but the HR department was iffy because of the I-9 requirements, which they were right to be as the HR department was correct. (The I-9 details the requirements for employees that employers must check for. See the requirements here: http://www.uscis.gov/files/form/i-9.pdf) Since one of the sections on the I-9 is "An alien permitted to work until ___ date", you need to have an expiration date, which you will not have unless you have the stamp or the EAD card.

Thanks for the reply. There's just one thing I don't understand about this. Doesn't the validity of the temporary EAD end on the day you get married and apply for AOS? That's the way I understood it. If so, the validity of the K1 visa is exactly the same as that of the EAD document, which is 90 days unless you get married sooner. In that case, the date you fill out on the I-9 form is exactly the same and it wouldn't make a difference. There's probably something I'm overlooking. But I am just like babblesgirl, looking for the means to make life easier when I finally arrive in the US.

That's the way I'm reading it too. I suppose though, however much we think there is a way around getting the JFK stamp, cellarlily's experience is probably indicative of how much of a wall there is here. It's incredibly frustrating to me how inconsistent some of the issues are associated with visa applications. I don't understand, for example, why the govt is intent on us not becoming a public charge but makes it difficult for us to actually help support our families unless of course you travel through JFK. Nonsensical *shrugs*

Here is what we recieved from our immigration attorney, Canadian citizen was legally admitted to the United states as a K-1 Fiamce. Such individuals are authorized to work under the authority of *Code of Federal regulations section 274.12(6)

As far as the SSN is concerned. You just show your Passport to them and they will fill out the rest of the forms. You can also find on here were it tells you about working and getting SSN. My husband applied and got his number 2 weeks later.

[bakofoil 27]

Here is what we recieved from our immigration attorney, Canadian citizen was legally admitted to the United states as a K-1 Fiamce. Such individuals are authorized to work under the authority of *Code of Federal regulations section 274.12(6)

As far as the SSN is concerned. You just show your Passport to them and they will fill out the rest of the forms. You can also find on here were it tells you about working and getting SSN. My husband applied and got his number 2 weeks later.

Interesting. Was your husband able to find work easily once he had the SSN? How soon did he file for AOS?

Thanks also to Kezzie for the info on the expiry of the EAD.

[Johnnie Oz 0]

Always happy to see this discussed again. The situation is so bizarre and absurd that reading about it is like visiting the ol Twilight Zone...

Here are some recent threads that have discussed various aspects of this, you might want to look at them, Babblesgirl and Stardust72.

Click here

here

and

here

I, for one, think that the K1 status (which does have an Expiry date on the I-94) is enough to work for the first 90 days. Sure, the JFK EA stamp makes things easier since employers can get confused. But if you can convince them that the K1 based I-94 is proof, you're set. The problem is after that expires - with or without the EA stamp.

Of course, it make ZERO sense and there was never the intention on the US Gov't's behalf that K1s who:

have abided by the terms of their visa (gotten married, paid $1000, filed for AOS) and now have a SS#, even a Driver's license should suddenly

be yanked out of the assimilation process.

Suddenly we can't work anymore, suddenly our temporary driver's license will expire etc etc. First empowered, then deflated. INSANE.

IT's regressive. Better to have us do nothing at first, then gradually give us more rights...

It's almost worse that it's not intentional, some silly kind of test of loyalty. The only reason we fall into this abyss is due to bureaucracy and perhaps the priorities set by USCIS, which assumes that k1s won't want to work (unlike those precious H1-Bs.)

Edited February 12, 2008 by Johnnie Oz

[bakofoil 27]

Cheers for the links Johnny. I'm so glad it's a point of interest for some at least because, to me, there has to be a reason why JFK issue EAD's and why the other POE's don't issue them anymore. There just had to be some little memo somewhere or other. But, as you say, (and this is true for those obtaining the precious stamp) the real issue is the period awaiting AOS. Is it worth getting a job for a couple of months then being forced into unemployment anyway? I would rather have that option though and rather not go through JFK since getting to LA from England via JFK is a complete nightmare

[cellarlily 0]

What it boils down to is how hard you want to fight it and how willing your company's HR department is to bend (break) the law. Truly, the system is flawed and makes no sense. The more people they have working legally, the more taxes they'll have, the less likely those immigrants are to become a burden on their USC spouses/families and the US government, and the stronger our economy is. It's all logical thinking on our end that K-1 visa holders are employment authorized and should be allowed to work from day one to day 90.

Unfortunately, they've either pulled the POE stamps from all except JFK in an attempt to limit the amount immigrants can work, or they want to put them through name checks before they authorize work...I have no idea what their logic is. But, as it stands, you'll have a difficult time arguing this point with anyone who knows the rules. Anyone who doesn't know the rules...well...that's their fault, I guess. VJ never, ever suggests lying or breaking the law, but if you feel you can argue your point well enough and they want to risk their company on hiring someone without proper documentation, that's your decision.

In the end, after having two separate immigration lawyers from two major cities tell us (and my husband's company) that he as a K-1 visa holder was able to work until his I-94 expired, the place where he was interviewing agreed to hire him. This was about a month and a half prior to his EAD being approved and prior to us digging into the whole SSA vs DHA/USCIS definitions of being "authorized to work". His company hired him on as an independent contractor and hired him on full-time as a permanent employee once he had his card in hand. This was because of two immigration lawyers saying it was legal and fair game, not because we insisted that he be allowed to work. Looking back, I wouldn't have even bothered had I known how much hassle it was and how even that short amount of time of him working as a contractor was, well, illegal despite it being authorized (if that makes sense).

Basically, we can argue this point until the US Government has one conclusive opinion/practice (hahaha), but your legal (and easy) options are as I've said all along. JFK or wait until the real EAD.

[cellarlily 0]

Here is what we recieved from our immigration attorney, Canadian citizen was legally admitted to the United states as a K-1 Fiamce. Such individuals are authorized to work under the authority of *Code of Federal regulations section 274.12(6)

We received something similar in response to questions about my husband's work eligibility. His HR department was still iffy, so they only kept him as a contract employee until his K-1 expired and EAD was issued. Again, I don't advocate that anyone go this route, but this was the situation we found ourselves in and...there you have it.

[Johnnie Oz 0]

Cheers for the links Johnny. I'm so glad it's a point of interest for some at least because, to me, there has to be a reason why JFK issue EAD's and why the other POE's don't issue them anymore. There just had to be some little memo somewhere or other. But, as you say, (and this is true for those obtaining the precious stamp) the real issue is the period awaiting AOS. Is it worth getting a job for a couple of months then being forced into unemployment anyway? I would rather have that option though and rather not go through JFK since getting to LA from England via JFK is a complete nightmare

try Delta Airlines. They fly into JFK and have many flights a day to LAX.

I was looking into this very option, but since I wound getting the visa near New Year's, I stayed on the East Coast for a while since my SO was over there visiting family. Prior to that, it seemed pretty easy to fly into JFK with Delta, and then make sure the connecting flight to LAX leaves some 2-3 hours later. Using delta.com

[bakofoil 27]

try Delta Airlines. They fly into JFK and have many flights a day to LAX.

I was looking into this very option, but since I wound getting the visa near New Year's, I stayed on the East Coast for a while since my SO was over there visiting family. Prior to that, it seemed pretty easy to fly into JFK with Delta, and then make sure the connecting flight to LAX leaves some 2-3 hours later. Using delta.com

Thanks for the tip. I'm still toying with the idea of just taking a break and awaiting the 'real' EAD. I think everyone here has made valid comments about this situation and reading these comments and those made on the threads you linked to I'm of the opinion that whilst a loophole may exist it's probably more trouble pursuing it than it's worth - as cellarlily has pointed out.

[Robyn-n-Kris 72]

This is something that has been a strong topic between myself and my fiance. For now we are planning on saving up as much as we can (aside from what has to be paid for the visa and AOS) We figure worse case scenario he can't work for the first few months while he is here. It sucks but i would rather plan ahead for it then find ourselves in a sticky situation. Flying through JFK is a possibility but one that would only be available if he didnt fly Continental i think.

[StoryAngel 4]

I've been going round and round in circles myself with this one. I have my K1 and I'll be coming to the US at the end of March. We're marrying in mid-May and I'd hoped to be able to work fairly soon after that. I thought that I had understood that K1s were work authorized for the first 90 days (here section C1) and then not until the EAD arrives. But I also thought I had understood the Immigration and Nationality Act to say any unauthorized work would be forgiven at AOS provided it didn't exceed 180 days. Quote from INA section 245(k):

(k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b ) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C ), under section 203(b )(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c )(2), (c )(7), and (c )(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B ) engaged in unauthorized employment; or

(C ) otherwise violated the terms and conditions of the alien's admission.

This made some sense to me, in that it appeared to be a provision for those of us that "fell through the gap" between end of K1 status and start of EAD whilst trying to assimilate. However, it does leave unanswered questions:

1) On reading more closely, I'm not convinced that K1s actually fit into the category above because it mentions immigrant visas and K1 is a nonimmigrant visa...

2) Even if it does apply, it still leaves unanswered to question about what to put on the I-9.

Just some more food for thought to throw into the mix!!

[Johnnie Oz 0]

This made some sense to me, in that it appeared to be a provision for those of us that "fell through the gap" between end of K1 status and start of EAD whilst trying to assimilate. However, it does leave unanswered questions:

1) On reading more closely, I'm not convinced that K1s actually fit into the category above because it mentions immigrant visas and K1 is a nonimmigrant visa...

2) Even if it does apply, it still leaves unanswered to question about what to put on the I-9.

Just some more food for thought to throw into the mix!!

Great food...lekker!!!

Well, this makes some sense since it appears there was never any intention of the US Gov't to put folks in this "gap situation".

I mean, if the wheels of bureaucracy turned at a normal rate, most of us would be EA under K1, get a EAD before that expires, and then get our GC within a year. No gaps. And for those deemed ineligible for whatever reason, they would be weeded out during this process.

But those who craft the laws realize that bureaucratic reality bites, and thus they create exceptions, exemptions, exonerations.

To address your two questions:

1. the title of section 245 that you refer to is " Adjustment of status of nonimmigrant to that of person admitted for permanent residence." thus it would appear to only apply to H1bs, K3s, K1s and all other visas that are non-immigrant. Immigrant visas, whether marriage based, employment based, family based, diversity lottery based are all for permanent residence so there is no need to adjust status.

Once we file for AOS, we may no longer be subject to the definition of non-immigrant as detailed in Section 101 (15) (K) of the INA. We become immigrants-in-waiting.

But 245 (k) is confusing...i am not sure if it applies to folks who are already inside the US and applying for adjustment of status. The key word in the title may be "admitted", implying something that will happen in the future and that the nonimmigrant is outside the US.

But there is no reason that these conditions, e.g. no more than 180 days of unauthorized employment, should not apply to us as well. Somewhere else in the INA?

2. No answer. This is the crux of the matter. The employer can get in trouble but the K1 would be forgiven. Even if we can convince them to accept our receipt for EAD (NOA1) and wait up till 90 days to see the actual card, that card's validity will be from the approval date. It is not retroactive. In other words, there is no real proof that we are EA during the gap. The I-94 will have expired but the EA starts e.g. one week/one month after that expiry date.

In between our status is "pending adjustment of status". Legally present, but unable to get a real DL in most states or work anywhere.

The only way around it is if the employer doesn't ask to see something as soon as our K1s/I-94 expire...then at some point we produce the EAD and they add this info. but the dates won't match... A USCIS/ICE raid-audit can get them in trouble...

No way around this?

Edited February 15, 2008 by Johnnie Oz

[diadromous mermaid 36]

Cheers for the links Johnny. I'm so glad it's a point of interest for some at least because, to me, there has to be a reason why JFK issue EAD's and why the other POE's don't issue them anymore. There just had to be some little memo somewhere or other. But, as you say, (and this is true for those obtaining the precious stamp) the real issue is the period awaiting AOS. Is it worth getting a job for a couple of months then being forced into unemployment anyway? I would rather have that option though and rather not go through JFK since getting to LA from England via JFK is a complete nightmare

You mean a "little memo" like the CFR, for example

TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 274a -- CONTROL OF EMPLOYMENT OF ALIENS \ Sec. 274a.12 Classes of aliens authorized to accept employment.

"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."

[bakofoil 27]

Cheers for the links Johnny. I'm so glad it's a point of interest for some at least because, to me, there has to be a reason why JFK issue EAD's and why the other POE's don't issue them anymore. There just had to be some little memo somewhere or other. But, as you say, (and this is true for those obtaining the precious stamp) the real issue is the period awaiting AOS. Is it worth getting a job for a couple of months then being forced into unemployment anyway? I would rather have that option though and rather not go through JFK since getting to LA from England via JFK is a complete nightmare

You mean a "little memo" like the CFR, for example

TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 274a -- CONTROL OF EMPLOYMENT OF ALIENS \ Sec. 274a.12 Classes of aliens authorized to accept employment.

"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."

lol, that wasn't quite the 'memo' I was referring to. So, the SSA are going against federal law by accepting an unstamped K1 visa as employment authorisation for the first 90 days? I'm confused why one organisation says one thing...also still confused as to why JFK issue the stamp but nowhere else will.

[MarkNAshley 0]

I know that their is always the concern about the I-9 about this issue. However this section appears to outline the k1 status very clearly.

List A - 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

Are there any thoughts on this? Since K1 is a status that allows the alien employee to work is this issue really about employer confusion and not about work eligibility?

Thanks