K-1 Clarification of Temporary Work Authorization via JFK

[johnners 0]

Hello all

I am a long time lurker, first time poster. I'd just like to begin by thanking each and every one of you for the absolutely indespensible resource you have all created. I will, I promise, fill in my timeline info etc. in the near future, but a quick background is: Met my fiancée in 2005, visited regularly on VWP until Sept 2008, when we filed I129-F. Got approved at London Embassy March 2009, and flew in on K-1 19th May 2009.

By and large, the information here is 100% spot on and has been responsible for the ease with which my fiancée and I have been able to get to this stage. One grey area, though, seems to be regarding the obtaining of a temporary authorization to work, which is rumoured only to be available via JFK. I really wanted the ability to freelance once I got here, so took a more expensive trip to JFK + domestic to Phoenix (where we live) on the off chance this still happens.

As at 19th May, JFK DO still stamp the back of the I-94 stapled to the passport with an authorization to work. I am not sure what constitutes general practice for them, but I did not have to ask them to do this. Once I was given my papers back in the second phase of being processed at POE, the officer gave me my passport and drew my attention to the stamp. Seamless.

I hope this maybe helps anyone considering doing the same thing.

Once again I couldn't be more grateful for the info you have all, without knowing it, passed on to me. I hope that I can provide others with help now that I've been through the worst of it.

Best wishes to all

John

[Gary and Alla 3,694]

Hello all

I am a long time lurker, first time poster. I'd just like to begin by thanking each and every one of you for the absolutely indespensible resource you have all created. I will, I promise, fill in my timeline info etc. in the near future, but a quick background is: Met my fiancée in 2005, visited regularly on VWP until Sept 2008, when we filed I129-F. Got approved at London Embassy March 2009, and flew in on K-1 19th May 2009.

By and large, the information here is 100% spot on and has been responsible for the ease with which my fiancée and I have been able to get to this stage. One grey area, though, seems to be regarding the obtaining of a temporary authorization to work, which is rumoured only to be available via JFK. I really wanted the ability to freelance once I got here, so took a more expensive trip to JFK + domestic to Phoenix (where we live) on the off chance this still happens.

As at 19th May, JFK DO still stamp the back of the I-94 stapled to the passport with an authorization to work. I am not sure what constitutes general practice for them, but I did not have to ask them to do this. Once I was given my papers back in the second phase of being processed at POE, the officer gave me my passport and drew my attention to the stamp. Seamless.

I hope this maybe helps anyone considering doing the same thing.

Once again I couldn't be more grateful for the info you have all, without knowing it, passed on to me. I hope that I can provide others with help now that I've been through the worst of it.

Best wishes to all

John

Seemless, yes. Worthless also.

The stamp is of no value without a specific work visa to go along with it. It USED to work because the wording of the I-9 form was vague and could be (and was by many employers) interpreted to mean a K-1 visa holder could work temporarily and many did. The DHS insists this was never the intent but they could not enforce the rule until they updated the information on the I-9 ofrm, which they did in February of this year, and began enforcing it in April.

Here is the deal. The I-9 form must be completed by all employers for any new person hired. You need to show them one of several pieces of information (documents) in order to verify your status to work. Unfortunately the stamp you have on your I-94 is no longer one of them. If you are offered a job, you will be asked to demonstrate for the I-9 that you are eligible for work (even citizens must do this) and you will have to show your employer (or contractor if you freelance) that you are eligible to work...you can't. Employers also now have a free 1-800 number to call, using your social security number, that verifies your eligibility to work. This system will not verify you currently. You CAN get an SSN.

K-1 visa holders cannot legally work in the United States until the have an EAD or Green Card. If you are working without an EAD or Green card, it could be a proble later. Such things were overlooked in the past because the law was vague, it was specifically the reason the form was changed so they may not be so lenient with K-1s in the future. JFK still wastes ink stamping all those I-94s because they know it means nothing wthout another specific document, so why not? This has been covered here in depth many times since the new forms came out in February. It was a gray area before that time. I hope you didn't pay too much more to go to New York.

Advice to other intending immigrants...If you want to work right away, get married in your country and wait for the CR-1 to be approved. The K-1 is not the holy grail and has it's price in AOS fees when you arrive and the delay in working or traveling until you adjust status. All these things need to be considered when making your visa choice, not just how fast you can get the visa. Yes, the K-1 is faster because when your fiancee arrives you are only half done! DHS has effectively closed the "loophole" allowing K-1s to work and working needs to be taken out of your consideration for K-1 visas until AOS is complete

We chose the K-1 specifically because it was fast and we had no intent of my wife working after she arrived.

[johnners 0]

Seemless, yes. Worthless also.

The stamp is of no value without a specific work visa to go along with it. It USED to work because the wording of the I-9 form was vague and could be (and was by many employers) interpreted to mean a K-1 visa holder could work temporarily and many did. The DHS insists this was never the intent but they could not enforce the rule until they updated the information on the I-9 ofrm, which they did in February of this year, and began enforcing it in April.

Here is the deal. The I-9 form must be completed by all employers for any new person hired. You need to show them one of several pieces of information (documents) in order to verify your status to work. Unfortunately the stamp you have on your I-94 is no longer one of them. If you are offered a job, you will be asked to demonstrate for the I-9 that you are eligible for work (even citizens must do this) and you will have to show your employer (or contractor if you freelance) that you are eligible to work...you can't. Employers also now have a free 1-800 number to call, using your social security number, that verifies your eligibility to work. This system will not verify you currently. You CAN get an SSN.

K-1 visa holders cannot legally work in the United States until the have an EAD or Green Card. If you are working without an EAD or Green card, it could be a proble later. Such things were overlooked in the past because the law was vague, it was specifically the reason the form was changed so they may not be so lenient with K-1s in the future. JFK still wastes ink stamping all those I-94s because they know it means nothing wthout another specific document, so why not? This has been covered here in depth many times since the new forms came out in February. It was a gray area before that time. I hope you didn't pay too much more to go to New York.

Advice to other intending immigrants...If you want to work right away, get married in your country and wait for the CR-1 to be approved. The K-1 is not the holy grail and has it's price in AOS fees when you arrive and the delay in working or traveling until you adjust status. All these things need to be considered when making your visa choice, not just how fast you can get the visa. Yes, the K-1 is faster because when your fiancee arrives you are only half done! DHS has effectively closed the "loophole" allowing K-1s to work and working needs to be taken out of your consideration for K-1 visas until AOS is complete

We chose the K-1 specifically because it was fast and we had no intent of my wife working after she arrived.

I'm sorry but I don't think your information is accurate.

I just phoned the USCIS to enquire about this. They confirmed that the I-94, with the authorization stamp, is valid authorization to work in conjunction with the newest I-9 form. The form itself, found at the USCIS website requires an A number (as per section 1) and one of the criteria found on page 5. The official I spoke to confirmed that List A, item 5 pertains to the type of validation I possess, and that this is entirely acceptable for the validity of my visa.

I appreciate that this is generally not useful for people seeking employment with a fixed, long-term employer who would presumably have to stop employment between temporary permit expiration and the AOS / EAD. However, for someone like me who is seeking freelance until the EAD, this is very useful indeed.

Bests

J

[TayRivers 4]

My HR deprtment wanted to employ a K1 visa holder with the temp EAD stamp on a valid I-94. The person completed the I-9 form and HR used the USCIS E-Verify system and it came back that the person was NOT authorized to work.

If you read the I-9 instructions it clearly state that the Visa must be for a Specific employer for the unexpired I-94 to be acceptable for the I-9. A K1 visa is not for a specific employer.

[johnners 0]

My HR deprtment wanted to employ a K1 visa holder with the temp EAD stamp on a valid I-94. The person completed the I-9 form and HR used the USCIS E-Verify system and it came back that the person was NOT authorized to work.

If you read the I-9 instructions it clearly state that the Visa must be for a Specific employer for the unexpired I-94 to be acceptable for the I-9. A K1 visa is not for a specific employer.

USCIS themselves told me otherwise. I did read the instructions, and I did not find the wording to which you are referring. Can you specify precisely where it says this? There is wording regarding reverification, and the following to employees:

For the purpose of completing this form, the term "employer"

means all employers including those recruiters and referrers

for a fee who are agricultural associations, agricultural

employers, or farm labor contractors. Employers must

complete Section 2 by examining evidence of identity and

employment authorization within three business days of the

date employment begins. However, if an employer hires an

individual for less than three business days, Section 2 must be

completed at the time employment begins. Employers cannot

specify which document(s) listed on the last page of Form I-9

employees present to establish identity and employment

authorization. Employees may present any List A document

OR a combination of a List B and a List C document.

There is not much wording apart from this, and I cannot see anywhere the wording you mention. The official on the phone confirmed the above quote to me, so I don't know what to say about your particular case. Is it possible the verification was inaccurate?

Anyway, I'm sure the people hiring me will do an authorization check prior to employing me -- I will request that they do so.

Best

J

[rebeccajo 14]

Moving to the Traveling and Working in America before Greencard forum.

johnners -

Please see the pinned thread at the top of the forum.

Edited May 21, 2009 by rebeccajo

[johnners 0]

Moving to the Traveling and Working in America before Greencard forum.

johnners -

Please see the pinned thread at the top of the forum.

Thanks for this. My thread topic actually had nothing to do with the EAD itself, just whether or not JFK was stamping them currently. Still, thanks.

J

[TayRivers 4]

5. In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport

with Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form.

http://www.uscis.gov/files/form/i-9.pdf

Have a read of the "acceptable document" on the last page.

[jsnearline 2]

I would think the temporary authorization would satisfy #8 under list C. Combine that with an ID from list B and you'd be good to go.

[TayRivers 4]

I would think the temporary authorization would satisfy #8 under list C. Combine that with an ID from list B and you'd be good to go.

Nope sorry that wont work either. EAD issued by DHS has a photo and fingerprint and is a card, not a stamp on a I94. Check out the Employers handbook for full details of what is acceptable.

27. Q. My employee has presented a foreign passport with a Form I-94 or I-94A (List A, Item 5) indicating an employment-authorized nonimmigrant status. How do I know if this nonimmigrant status authorizes the employee to work?

A

.You, as the employer, likely have submitted a petition to USCIS on a nonimmigrant worker’s behalf.However, there are some exceptions to this rule:

1.You made an offer of employment to a Canadian passport holder who entered the United States under NAFTA with an offer letter from your company.This nonimmigrant worker will have a Form I-94 or Form I-94A indicating TN status, and may present either a passport or a valid Canadian driver’s license in combination with Form I-94 or Form I-94A.

2.A student working in on-campus employment or participating in curricular practical training.(See questions 28 and 29.)

3.A J-1 exchange visitor

.(See question 34.)

Most employees who present a foreign passport in combination with a Form I-94 or I-94A (List A, Item 5) are restricted to work for their petitioning employer

.If you did not submit a petition for an employee who presents such documentation, then that nonimmigrant worker is not usually authorized to work for you.

The table below lists the nonimmigrant classifications that indicate that an employee is authorized to work incident to status

.Such

classifications will be indicated on Form I-94 or I-94A.Classification

Description

A-1, A-2

Foreign Government Officials or employees of A-1 or A-2

A-3

Employee of an A-1, A-2

E-1, E-2, E-3

Treaty Trader/Investors

G-1, G-2, G-3, G-4

Foreign representatives or officers of an international organization

G-5

Employee of a G-1, G-2, G-3, or G-4

H-1B

Specialty Occupations, DOD workers

H-1C

Nurses in health professional shortage areas

H-2A

Temporary agricultural workers

H-2B

Temporary workers: skilled and unskilled

H-3

Trainees

J-1

Exchange visitors

L-1

Intra-company transfers

NATO-1 to NATO-6

Representatives to NATO

NATO-7

Employee of NATO representative

P-1

Individual or team athletes, entertainment groups, or artists

Q-1

International cultural exchange visitors

R-1

Religious workers

TN

NAFTA Trade visas for Canadians or Mexicans

You will note K1 is not listed.

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

[Gary and Alla 3,694]

My HR deprtment wanted to employ a K1 visa holder with the temp EAD stamp on a valid I-94. The person completed the I-9 form and HR used the USCIS E-Verify system and it came back that the person was NOT authorized to work.

If you read the I-9 instructions it clearly state that the Visa must be for a Specific employer for the unexpired I-94 to be acceptable for the I-9. A K1 visa is not for a specific employer.

USCIS themselves told me otherwise. I did read the instructions, and I did not find the wording to which you are referring. Can you specify precisely where it says this? There is wording regarding reverification, and the following to employees:

For the purpose of completing this form, the term "employer"

means all employers including those recruiters and referrers

for a fee who are agricultural associations, agricultural

employers, or farm labor contractors. Employers must

complete Section 2 by examining evidence of identity and

employment authorization within three business days of the

date employment begins. However, if an employer hires an

individual for less than three business days, Section 2 must be

completed at the time employment begins. Employers cannot

specify which document(s) listed on the last page of Form I-9

employees present to establish identity and employment

authorization. Employees may present any List A document

OR a combination of a List B and a List C document.

There is not much wording apart from this, and I cannot see anywhere the wording you mention. The official on the phone confirmed the above quote to me, so I don't know what to say about your particular case. Is it possible the verification was inaccurate?

Anyway, I'm sure the people hiring me will do an authorization check prior to employing me -- I will request that they do so.

Best

J

When they do, you will NOT be authorized. We refer to the USCIS phone lines as the "misinformation hotline" You can download a copy of the I-9 form and check the current wording of Item 5 in column A. It is possible the untrained person you spoke to at USCIS had a copy of the old form or something. This is no longer a gray area. I reoeat my earlier statement.

K-1 visa holders cannot work legally without an EAD or Green Card. ANY information to the contrary is wrong.

[Gary and Alla 3,694]

My HR deprtment wanted to employ a K1 visa holder with the temp EAD stamp on a valid I-94. The person completed the I-9 form and HR used the USCIS E-Verify system and it came back that the person was NOT authorized to work.

If you read the I-9 instructions it clearly state that the Visa must be for a Specific employer for the unexpired I-94 to be acceptable for the I-9. A K1 visa is not for a specific employer.

USCIS themselves told me otherwise. I did read the instructions, and I did not find the wording to which you are referring. Can you specify precisely where it says this? There is wording regarding reverification, and the following to employees:

For the purpose of completing this form, the term "employer"

means all employers including those recruiters and referrers

for a fee who are agricultural associations, agricultural

employers, or farm labor contractors. Employers must

complete Section 2 by examining evidence of identity and

employment authorization within three business days of the

date employment begins. However, if an employer hires an

individual for less than three business days, Section 2 must be

completed at the time employment begins. Employers cannot

specify which document(s) listed on the last page of Form I-9

employees present to establish identity and employment

authorization. Employees may present any List A document

OR a combination of a List B and a List C document.

There is not much wording apart from this, and I cannot see anywhere the wording you mention. The official on the phone confirmed the above quote to me, so I don't know what to say about your particular case. Is it possible the verification was inaccurate?

Anyway, I'm sure the people hiring me will do an authorization check prior to employing me -- I will request that they do so.

Best

J

Be sure they are using the I-9 form revised 02-02-09 Previous editions are not acceptablke but I just found no less than THREE USCIS websites still showing the OLD form and only one with the new form. The new form changes thew wording so that the stamp you received is valid ONLY on conjuction with a specific visa to work for a specific employer. K-1 is not on that list of visas.

Check the wording for the OLD form, List A, item 5 vs. the wording for list A, item 5 on the new form. The difference is immediately apparent.

[Gary and Alla 3,694]

I would think the temporary authorization would satisfy #8 under list C. Combine that with an ID from list B and you'd be good to go.

It does not. The "Employment Authorization Document" is the EAD we so often refer to here. Check the NEW website listing for the I-9 and they give a photo of the card they refer to, it is NOT an I-94 which is referred to separately and also called an arrival and depature card.

There is no legal mechanism for a K-1 holder to work until he/she has one of the EADs mentioned above OR a Green Card

[Gary and Alla 3,694]

Moving to the Traveling and Working in America before Greencard forum.

johnners -

Please see the pinned thread at the top of the forum.

Thanks for this. My thread topic actually had nothing to do with the EAD itself, just whether or not JFK was stamping them currently. Still, thanks.

J

I should like to think you did not pay extra to go to JFK to find out if CBP is wasting ink stamping K-1's I-94s with useless "employment authorized" marks.

The porpose of the post was to inform K-1 holders they COULD work and all they had to do was a "seamless" trip through JFK. This is not true and is not a service to members of VJ. It is also the reason that some people still have an idea that it is a gray area. It is not. That and the USCIS misinformation line. There is nothing you or I can do about the USCIS giving bad information, maybe a gift subscription to VJ, but we need to cease this nonsense here.

[rebeccajo 14]

I would think the temporary authorization would satisfy #8 under list C. Combine that with an ID from list B and you'd be good to go.

What document from List B do you think a newly arrived immigrant would possess?