Official USCIS position on K1 work authorization

[lunabean 0]

Any information, advice or feedback is appreciated:

1. Can someone tell me where I can find an official USCIS website that addresses the work authorization issue?

2. If someone on a K1 has the work authorization stamp and is hired by a company, follows all procedures, gets married well within the 90 day time period and submits AOS papers and EAD application, can an employer continue to employ the person while the petition is pending or does the employee need to quit? If the employer continues to employ and pay the person, is there any possible reprecussion for the immigrant or the employer?

I am having a hard time finding SPECIFIC, LEGAL info about this and have only seen people saying that the immigrant needs to stop working. Am I to believe that everyone who gets the work authorization works for a few months and then quits their job for 3-9 months before working again?

Thanks. Hope timelines are moving along for all those waiting!

[DI&JR 1]

Any information, advice or feedback is appreciated:

1. Can someone tell me where I can find an official USCIS website that addresses the work authorization issue?

2. If someone on a K1 has the work authorization stamp and is hired by a company, follows all procedures, gets married well within the 90 day time period and submits AOS papers and EAD application, can an employer continue to employ the person while the petition is pending or does the employee need to quit? If the employer continues to employ and pay the person, is there any possible reprecussion for the immigrant or the employer?

I am having a hard time finding SPECIFIC, LEGAL info about this and have only seen people saying that the immigrant needs to stop working. Am I to believe that everyone who gets the work authorization works for a few months and then quits their job for 3-9 months before working again?

Thanks. Hope timelines are moving along for all those waiting!

Here is a link to the M-274 Handbook for Employers. In particular, see page 26, #33: "Q. What do I do when an employee’s work authorization noted in either Section 1 or 2 of the Form I-9 expires?"

Also, for the sake of reference, page 24, #23: "Q. When can employees present receipts for documents in lieu of actual documents establishing employment eligibility?"

[RaTBoX 1]

Any information, advice or feedback is appreciated:

1. Can someone tell me where I can find an official USCIS website that addresses the work authorization issue?

2. If someone on a K1 has the work authorization stamp and is hired by a company, follows all procedures, gets married well within the 90 day time period and submits AOS papers and EAD application, can an employer continue to employ the person while the petition is pending or does the employee need to quit? If the employer continues to employ and pay the person, is there any possible reprecussion for the immigrant or the employer?

I am having a hard time finding SPECIFIC, LEGAL info about this and have only seen people saying that the immigrant needs to stop working. Am I to believe that everyone who gets the work authorization works for a few months and then quits their job for 3-9 months before working again?

Thanks. Hope timelines are moving along for all those waiting!

Title 8 of the Code of Federal Regulations (CFR) §274a.(12).(a) is the piece of legislation that covers which classifications of aliens can work. For a K1 holder, you need to look at 8 CFR §274a.(12).(a).(6) which states: (important parts bolded)

(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. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States. (Introductory text revised effective 10/17/07; 72 FR 53014 ) (Introductory text revised 7/30/04; 69 FR 45555 ) (Introductory text amended effective 3/4/02; 67 FR 4784 ) (Introductory text amended 9/7/01; 66 FR 46697 ) (Introductory text revised 8/14/01; 66 FR 42587 ) (Introductory text amended 6/1/01; 66 FR 29961)

....

(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; (Revised 8/14/01; 66 FR 42587 )

So, as a K1 holder you are work authorized incident to your status as a holder of a K1 visa, but to accept a job you must have documentary proof of that authorization. The only documentary proof available to a K1 holder is your I-94 endorsed with an employment authorization stamp, or an EAD card for category (a)(6) (which refers to the category in 8 CFR §274a.(12).(a).(6) as quoted above). Without one of these forms of documentary proof, you cannot work. If you do have this proof required by 8 CFR §274a.(12).(a) then the work authorization only lasts for "the period of admission in that status" which for a K1 holder is 90 days from entry (this is the date stamped on your I-94 with or without any employment authorization endorsement).

When you start a job, you are required to complete form I-9 which the employer uses to verify your employment eligibility. It's illegal for the employer to make a decision on any future expiration date of any work authorization document, but if you present them with a document that does have a future expiration date they have to re-verify your employment eligibility on another section of the I-9. For this you need to present new documents with new dates showing you are still work authorized. IF you cannot do this, the employer is legally obligated to terminate your employment.

Should an employer hire you when you are not work authorized, they could face legal action from the Department of Labor. There would be no punishment from the Department of Labor towards the employee, but USCIS may not be too favorable about unauthorized employment. It's often said that USCIS forgives unauthorized employment when married to a USC, but I've never actually heard of a case where this unofficial pardon took place. Working without work authorization is direct contravention of 8 CFR §274a.(12).(a). If asked at your Adjustment of Status interview if you undertook any unauthorized work and you answered yes, you'd then become ineligible for Adjustment of Status under Immigration and Nationality Act (INA) §212.(a).(2).(a).(i).(II) (ineligible due to violation of any law of regulation of the US).

At the end of the day, you take your own chances and risks. You've asked for the legal side to it, there is it. You can work with the proper documentation, and you can only work for as long as your work authorized status lasts. Beyond that, you're in illegal areas which may or may not be caught, and which may or may not have adverse affects on the rest of your USCIS dealings.

Hope that helped.

Edited August 21, 2008 by RaTBoX

[coyote 3]

I remember a memo from Emilio Gonzalez addressing the issue and saying that the agency did not consider the K! auhorization to work. I need a copy of this for a column I'm writing but can't find it, either on this website (where I originally found a link), or USCIS's. Can anyone help with this? Thanks.