Working after approval before recieving EAD card

[bhlloy 0]

Hi All,

I have a bit of a problem with the mail in my area, especially with official documents and it's been well over a week since my EAD approval e-mail arrived saying that they were sending the card. I'm getting a sinking feeling that my card has been lost in the mail - as have a number of other less important documents from INS over the past 6 months.

I have a job offer and the employer is willing to employ me right now on "good faith" - i.e. that I have been approved, I am legit to work and all I am waiting for is the physical EAD card. On my side, is this a) completely illegal or B) likely to prove a problem down the road with INS? Or will INS look at it as I have already been approved, and the EAD is just the burden on the employers side for them to prove that they can employ me? When I went to an immigration lawyer earlier in the year this was basically what he said - that K-1 is legally authorized to work but an employer cannot employ you on their side without I9 proof - which is basically an EAD or green card. I do not want to do anything remotely illegal or that will jeopardize my status here as a K1.

This brings up a second question - if the card has been lost in the mail, what sort of timeframe am I looking at for a replacement? Will INS even believe that I haven't recieved it?

Any help or guidance as always is greatly appreciated

[zixuandavid 0]

http://www.visajourney.com/forums/index.php?showtopic=21313

[bhlloy 0]

http://www.visajourney.com/forums/index.php?showtopic=21313

Thanks - that is very helpful reading. From what I am reading that only appears to apply to replacement documents though as in the other thread - if I never recieved the document, is that still going to apply to my case? I guess the short answer is if the card doesn't turn up to call the NVC and go from there.

[zixuandavid 0]

http://www.visajourney.com/forums/index.php?showtopic=21313

Thanks - that is very helpful reading. From what I am reading that only appears to apply to replacement documents though as in the other thread - if I never recieved the document, is that still going to apply to my case? I guess the short answer is if the card doesn't turn up to call the NVC and go from there.

The I-9 directive is irregardless of new or replacement.. it simply states that if an employer asks for work authorization, then you have three days to produce an EAD receipt ; This receipt then buys you 90 days to produce the EAD.

If the EAD is truly lost in the mail.. and it's not clear how long you've been waiting.. if you approaching 90 days, you can go to the local office and get a Temp EAD on day 91.

[Yodrak 7]

david,

Not quite. It states that if a person is employment authorized they have 3 days to produce a receipt for the application for the document and 90 days to produce the document itself.

The correct 'if' is significant.

Yodrak

http://www.visajourney.com/forums/index.php?showtopic=21313

Thanks - that is very helpful reading. From what I am reading that only appears to apply to replacement documents though as in the other thread - if I never recieved the document, is that still going to apply to my case? I guess the short answer is if the card doesn't turn up to call the NVC and go from there.

The I-9 directive is irregardless of new or replacement.. it simply states that if an employer asks for work authorization, then you have three days to produce an EAD receipt ; This receipt then buys you 90 days to produce the EAD.

If the EAD is truly lost in the mail.. and it's not clear how long you've been waiting.. if you approaching 90 days, you can go to the local office and get a Temp EAD on day 91.

[zixuandavid 0]

david,

Not quite. It states that if a person is employment authorized they have 3 days to produce a receipt for the application for the document and 90 days to produce the document itself.

The correct 'if' is significant.

Yodrak

http://www.visajourney.com/forums/index.php?showtopic=21313

Thanks - that is very helpful reading. From what I am reading that only appears to apply to replacement documents though as in the other thread - if I never recieved the document, is that still going to apply to my case? I guess the short answer is if the card doesn't turn up to call the NVC and go from there.

The I-9 directive is irregardless of new or replacement.. it simply states that if an employer asks for work authorization, then you have three days to produce an EAD receipt ; This receipt then buys you 90 days to produce the EAD.

If the EAD is truly lost in the mail.. and it's not clear how long you've been waiting.. if you approaching 90 days, you can go to the local office and get a Temp EAD on day 91.

Yodrak,

Your clarification is duly noted and an important distinction to make... thanks as always.

I've already laid out my thinking that a K1 is work authorized and what my understanding of that means [in other posts] based on the SS memo, etc.. And also admitted that convincing an employer of it can be difficult...

I'm not trying to argue your point, only clarifying my statement. And as I said in other posts on this topic, I have no problem being wrong.

But I have heard plenty of immigrant's relate their ability to work based on only the k1. Getting the receipt simply extended their authorization time beyond the I-94 expiration, till they get the EAD. This does not necessarily imply that this alone proves position; I cannot ultimately say if these employers are following all the rules or not since I only hear part of the story.

I may be too much of a lone voice on this issue and will consider to just not raise this point too strongly in the future.

david

[zixuandavid 0]

david,

Not quite. It states that if a person is employment authorized they have 3 days to produce a receipt for the application for the document and 90 days to produce the document itself.

The correct 'if' is significant.

Yodrak

http://www.visajourney.com/forums/index.php?showtopic=21313

Thanks - that is very helpful reading. From what I am reading that only appears to apply to replacement documents though as in the other thread - if I never recieved the document, is that still going to apply to my case? I guess the short answer is if the card doesn't turn up to call the NVC and go from there.

The I-9 directive is irregardless of new or replacement.. it simply states that if an employer asks for work authorization, then you have three days to produce an EAD receipt ; This receipt then buys you 90 days to produce the EAD.

If the EAD is truly lost in the mail.. and it's not clear how long you've been waiting.. if you approaching 90 days, you can go to the local office and get a Temp EAD on day 91.

Yodrak,

Your clarification is duly noted and an important distinction to make... thanks as always.

I've already laid out my thinking that a K1 is work authorized [without need for an EAD, which is just one form of proof of authorization] and what my understanding of that means [in other posts] based on the SS memo, etc.. And also admitted that convincing an employer of it can be difficult...

I'm not trying to argue your point, only clarifying my statement. The OP being K1 was was visa I had in mind (as K3 cannot work without EAD for certainty... but the I-9 will cover many other visa types as well).

But I have heard plenty of immigrant's relate their ability to work based on only the k1. Getting the receipt simply extended their authorization time beyond the I-94 expiration, till they get the EAD. This does not necessarily imply that this alone proves position; I cannot ultimately say if these employers are following all the rules or not since I only hear part of the story.

I may be too much of a lone voice on this issue and will consider to just not raise this point too strongly in the future.

david

[americangirl 0]

david,

Not quite. It states that if a person is employment authorized they have 3 days to produce a receipt for the application for the document and 90 days to produce the document itself.

The correct 'if' is significant.

Yodrak

What I don't understand is why this doesn't mean an AOS/EAD applicant can't start working before they get their EAD, but after their NOA1 - I mean, my husband had a receipt for his EAD application in hand in mid-May, but he hasn't been working until now (since his EAD was approved). Since *most* EAD applicants get their approvals or interim EADs within 90 days, wouldn't the wording of that law indicate that you can start working after you get the NOA1, and you just have to have the actual EAD 90 days later? Wouldn't that apply to, like...everybody?

Maybe I'm missing something...but I feel the need to justify this whole thing...

[zixuandavid 0]

david,

Not quite. It states that if a person is employment authorized they have 3 days to produce a receipt for the application for the document and 90 days to produce the document itself.

The correct 'if' is significant.

Yodrak

What I don't understand is why this doesn't mean an AOS/EAD applicant can't start working before they get their EAD, but after their NOA1 - I mean, my husband had a receipt for his EAD application in hand in mid-May, but he hasn't been working until now (since his EAD was approved). Since *most* EAD applicants get their approvals or interim EADs within 90 days, wouldn't the wording of that law indicate that you can start working after you get the NOA1, and you just have to have the actual EAD 90 days later? Wouldn't that apply to, like...everybody?

Maybe I'm missing something...but I feel the need to justify this whole thing...

This is the point I was trying to make... but the difficulty seems to be with the employer not considering a K1 "work authorized" [ as Yodrak correctly points out the significance of the IF ]...

I think one confusion is that "work authorization" and "proof of work authorization" are getting confused. The I-9 says "If a person is work authorized".. a K1 is authorized to work "incident to status", .. if they were not authorized to work, then they could not even apply for EAD !

So, the argument goes that they may be work authorized, but they need to supply "proof" of that authorization... and I've argued in another post why the I-94 is one proof, and in this one how the receipt for EAD is also "proof", which is in the employer's "bible", I-9...

All one can do is hope to find an employer who agrees that K1 is authorized 'incident to status', and then hope they will apply their own I-9 wording...

[Yodrak 7]

david,

In the context of this thread it's not clear if bhlloy applied for an EAD as a-6 or applied for EA (and the associated EAD) as c-9. My comments up to now have implicitly assumed the latter. Your subsequent comments seem to be based on the former? (Note that I was recently challenged in another thread by LuckyStrike (formerly rch) for considering the possibility that the a-6 option was used, and I accept that his basis for that challenge is valid - although a-6 exists, like him my sense is that it is rarely used).

Turning to americangirl's question, if an I-765 is submitted on the basis of c-9 then I would point out that the Receipt Notice does not mean that a person is employment authorized and is covered by the 'if' that would allow 90 days to produce the EA card.

Yodrak

david,

Not quite. It states that if a person is employment authorized they have 3 days to produce a receipt for the application for the document and 90 days to produce the document itself.

The correct 'if' is significant.

Yodrak

What I don't understand is why this doesn't mean an AOS/EAD applicant can't start working before they get their EAD, but after their NOA1 - I mean, my husband had a receipt for his EAD application in hand in mid-May, but he hasn't been working until now (since his EAD was approved). Since *most* EAD applicants get their approvals or interim EADs within 90 days, wouldn't the wording of that law indicate that you can start working after you get the NOA1, and you just have to have the actual EAD 90 days later? Wouldn't that apply to, like...everybody?

Maybe I'm missing something...but I feel the need to justify this whole thing...

This is the point I was trying to make... but the difficulty seems to be with the employer not considering a K1 "work authorized" [ as Yodrak correctly points out the significance of the IF ]...

I think one confusion is that "work authorization" and "proof of work authorization" are getting confused. The I-9 says "If a person is work authorized".. a K1 is authorized to work "incident to status", .. if they were not authorized to work, then they could not even apply for EAD !

So, the argument goes that they may be work authorized, but they need to supply "proof" of that authorization... and I've argued in another post why the I-94 is one proof, and in this one how the receipt for EAD is also "proof", which is in the employer's "bible", I-9...

All one can do is hope to find an employer who agrees that K1 is authorized 'incident to status', and then hope they will apply their own I-9 wording...

Edited July 14, 2006 by Yodrak

[zixuandavid 0]

david,

In the context of this thread it's not clear if bhlloy applied for an EAD as a-6 or applied for EA (and the associated EAD) as c-9. My comments up to now have implicitly assumed the latter. Your subsequent comments seem to be based on the former? (Note that I was recently challenged in another thread by LuckyStrike (formerly rch) for considering the possibility that the a-6 option was used, and I accept that his basis for that challenge is valid - although a-6 exists, like him my sense is that it is rarely used).

Turning to americangirl's question, if an I-765 is submitted on the basis of c-9 then I would point out that the Receipt Notice does not mean that a person is employment authorized and is covered by the 'if' that would allow 90 days to produce the EA card.

Yodrak

david,

Not quite. It states that if a person is employment authorized they have 3 days to produce a receipt for the application for the document and 90 days to produce the document itself.

The correct 'if' is significant.

Yodrak

What I don't understand is why this doesn't mean an AOS/EAD applicant can't start working before they get their EAD, but after their NOA1 - I mean, my husband had a receipt for his EAD application in hand in mid-May, but he hasn't been working until now (since his EAD was approved). Since *most* EAD applicants get their approvals or interim EADs within 90 days, wouldn't the wording of that law indicate that you can start working after you get the NOA1, and you just have to have the actual EAD 90 days later? Wouldn't that apply to, like...everybody?

Maybe I'm missing something...but I feel the need to justify this whole thing...

This is the point I was trying to make... but the difficulty seems to be with the employer not considering a K1 "work authorized" [ as Yodrak correctly points out the significance of the IF ]...

I think one confusion is that "work authorization" and "proof of work authorization" are getting confused. The I-9 says "If a person is work authorized".. a K1 is authorized to work "incident to status", .. if they were not authorized to work, then they could not even apply for EAD !

So, the argument goes that they may be work authorized, but they need to supply "proof" of that authorization... and I've argued in another post why the I-94 is one proof, and in this one how the receipt for EAD is also "proof", which is in the employer's "bible", I-9...

All one can do is hope to find an employer who agrees that K1 is authorized 'incident to status', and then hope they will apply their own I-9 wording...

Actually I don't assume either case. A K1 is work authorized without any EAD. Social Security has long stated this (since their memo in 2000), and finally USCIS appears to be agreeing to it...

The problem is that Social Security [memos] and USCIS

 are not acting together...   One makes a policy statement and the other makes no concession in that direction.

I could post quite a few links (it's all available on the internet), but maybe I've pushed this too far off the OPs concerns.

The bottom line is to just see if the employer accepts the k1 as "work authorized" due to "incident to status"... and then appy their own I-9 statement to accept the receipt. If not, then you'll have to wait for the EAD. In the long run, Social Security and USCIS need to disseminate the information to the public better...

[bhlloy 0]

Yodrak - yes I am applying as c-9. I have not had an EAD before. I had exactly the same discussion with the hiring manager at my potential job on Friday - she has hired plenty of people whose EAD has expired on the basis of a receipt, but I can't see any way that I can tick "yes" on section 1 of the I-9 - unless a) as zixuandavid is arguing USCIS does consider K1 work authorised and just doesn't bother to tell anyone about it or B) my e-mail(s) saying that my case has been approved are "good enough" to allow me to tick that I am work authorised. And even if B) is the case, I still don't have a card number or an expiry date to enter in section 1, so I still can't fill it out in full.

At the moment I am playing it safe - I'm going into Santa Ana DO on Thursday and seeing what they have to say. I really appreciate both you guys input on the matter.

Zixuandavid - you haven't pushed it off my concerns at all. Both my wife and an immigration lawyer I went to a while back both fully agree with your view. I also appreciate what you are saying - BUT even you say that USCIS are only just coming around to that view and that their Code of Federal Regulations do not support that K-1 is work authorised without EAD - and as USCIS are the ones making the decision on my GC, I'm just not willing to take a chance on it.

[zixuandavid 0]

Yodrak - yes I am applying as c-9. I have not had an EAD before. I had exactly the same discussion with the hiring manager at my potential job on Friday - she has hired plenty of people whose EAD has expired on the basis of a receipt, but I can't see any way that I can tick "yes" on section 1 of the I-9 - unless a) as zixuandavid is arguing USCIS does consider K1 work authorised and just doesn't bother to tell anyone about it or B) my e-mail(s) saying that my case has been approved are "good enough" to allow me to tick that I am work authorised. And even if B) is the case, I still don't have a card number or an expiry date to enter in section 1, so I still can't fill it out in full.

At the moment I am playing it safe - I'm going into Santa Ana DO on Thursday and seeing what they have to say. I really appreciate both you guys input on the matter.

Zixuandavid - you haven't pushed it off my concerns at all. Both my wife and an immigration lawyer I went to a while back both fully agree with your view. I also appreciate what you are saying - BUT even you say that USCIS are only just coming around to that view and that their Code of Federal Regulations do not support that K-1 is work authorised without EAD - and as USCIS are the ones making the decision on my GC, I'm just not willing to take a chance on it.

it is truly a mess when USCIS websites and Social Security cannot agree, it leaves both the legal community and public confused. I tend to see most sites misunderstanding the issue since they tend to refer to USCIS code of federal regulations, which governs even the I-9 statement , "If a person is work authorized..." -- 8 C.F.R. S 274a.2( B )(vi). Those that seem to understand this issue, take the correct step to look at Social Security to define what "work authorized" means.

Here's the SS history as I have researched it:

1) SSN Memo in 2000:

http://www.k1k3.com/stuff/SSNMemo.pdf

This is the first reference I found that SS states K1 is work authorized and their I-94 ALONE is "PROOF" of that authorization, even if 'work authorized' is missing from the form. it a clear indication that SS puts the I-94 on equal ground with the EAD as "proof of work authorization".

2) SS on Employment Authorization

https://s044a90.ssa.gov/apps10/poms.nsf/lnx...opendocument#c1

"The following sections list nonimmigrants, by alien class of admission codes, who are authorized to work in the U.S. without specific authorization from DHS. The person’s I-94 will not have the DHS employment authorization stamp and the alien will generally not have an EAD. " -- K1 is in this list

3) SSN on establishing lawful alien status

https://s044a90.ssa.gov/apps10/poms.nsf/lnx...33;opendocument

"When an alien listed below has an (*) next to the description, he/she may work only when INS grants employment authorization and issues an EAD. When the alien presents an EAD" -- K1 has NO (*).. although you can note that K2, K3, K4 do...

4) MINUTES OF THE SOCIAL SECURITY ADMINISTRATION AND CIS AILA LIAISON MEETING ON SSA-RELATED ISSUES -- May 8, 2006

http://www.tomesparza.com/documents/minssocialcis.pdf

"Eliminating need for EAD for noncitizens authorized to work incident to status under 8 CFR §274a.12(a). In addition to asylees, which have been the subject of various instructional memos and guidance from CIS to SSA, there are other foreign nationals authorized to be employed incident to the status they hold in the U.S. Can SSA work with CIS to get updated guidance to SSA field offices confirming that all L-2 dependents, E-2 dependents, E-1 dependents, and K-1 fiancées are authorized to work without presentation of an EAD card, as stated in CIS regulations, and thus should likewise be able to have SSN issued upon presentation of their status?" -- Note they claim CIS regulations do call for K1s as not needing EAD...

"CIS agrees that spouses of Es and Ls are authorized to work incident to status and need not present EADs to demonstrate work authorization or to obtain an SSN and has so advised SSA. Since receiving CIS’s guidance, SSA has been reluctant to assign SSNs to E and L spouses who lack EADs because of difficulties in differentiating a spouse, who is work-authorized incident to status, from a child, who is not. (The I-94 does not identify whether the derivative is a spouse or a child). SSA will accept a marriage certificate, with appropriate translation, as proof that an applicant has been admitted as an E or L spouse. SSA will change its POMS guidance accordingly and will no longer require an E or L spouse to present an EAD to apply for an SSN. CIS and SSA also agree that K-1 fiancées do not require an EAD to evidence work authorization or to apply for an SSN, and POMS will be revised accordingly. Current guidance (to be revised) is at POMS RM00203.600" -- Finally, CIS agrees with SS position since 2000.

Here's an interesting link from a purely CIS point of view:

RECOMMENDATION FROM THE CIS OMBUDSMAN TO THE DIRECTOR, USCIS

http://www.dhs.gov/interweb/assetlibrary/C...AD_03-20-06.pdf

Lots of interesting recommendations on EAD... but it's also clear that CIS OMBUDSUMAN don't follow the SS position and instead is CFR-centric... but they do point out [in footnotes] that the asylee memo states asylees don't need any EAD due to they are "work authorized incident to status"...

And in another footnote they make the logical extension that "the regulations require that the foreign national apply for an EAD. However, this is not the case with asylees, and there would appear to be no rationale for the EAD requirement for K-1s".

[Carol&Marc 0]

So why in the he|| are we waiting for these EAD's??? It pisses me off to read all this stuff and being stuck here waiting for the dang approval... Very frustrating...

Carol

[Yodrak 7]

bhlloy,

A few points:

- A K1 has work authorization for as long as they are a K1 - for 90 days after entry. When their I-94 expires their K1 status and employment authorization expire with it. They are not employment authorized again until an I-765 submitted on the basis of c9 has been approved (or they become a LPR).

- For SSA purpose simply recognizing that a K1 is employment authorized is adequate, no further documentation is required (although confirmation via SAVE or written confirmation is). However, for employment purposes, the law requires that an employer must see certain specificed forms of documentation that a person is employmnet authorized. An I-94 marked 'employment authorized' is acceptable, an I-94 simply marked K1 is not. This is not policy that USCIS has any control over, it is written into the law.

- Despite the preceding, it is the employer who is charged by law to verify their employee's employment authorization status and inspect and keep records of their employee's documentation. If an employer is willing to hire you based on the documentation that you have, it's their problem if somewhere down the line they are audited and found to be not in compliance. So if they'll hire you, and you want the job, why not take it?

Yodrak

Yodrak - yes I am applying as c-9. I have not had an EAD before. I had exactly the same discussion with the hiring manager at my potential job on Friday - she has hired plenty of people whose EAD has expired on the basis of a receipt, but I can't see any way that I can tick "yes" on section 1 of the I-9 - unless a) as zixuandavid is arguing USCIS does consider K1 work authorised and just doesn't bother to tell anyone about it or my e-mail(s) saying that my case has been approved are "good enough" to allow me to tick that I am work authorised. And even if is the case, I still don't have a card number or an expiry date to enter in section 1, so I still can't fill it out in full.

At the moment I am playing it safe - I'm going into Santa Ana DO on Thursday and seeing what they have to say. I really appreciate both you guys input on the matter.

Zixuandavid - you haven't pushed it off my concerns at all. Both my wife and an immigration lawyer I went to a while back both fully agree with your view. I also appreciate what you are saying - BUT even you say that USCIS are only just coming around to that view and that their Code of Federal Regulations do not support that K-1 is work authorised without EAD - and as USCIS are the ones making the decision on my GC, I'm just not willing to take a chance on it.

Edited July 17, 2006 by Yodrak