Authorization for working prior to receiving EAD and AOS

[Trompe le Monde 1,107]

But not in this thread, right? One that has been learning about the process for many years has read a lot of info that suggests this issue is not as clear cut as you suggest this is....with people (Gary, Krikit and others) who have consulted with the USCIS and found a different point of view than the one you are putting forward.

When searching BE I found this thread:

http://britishexpats.com/forum/showthread....eign+employment

interesting tidbits:

Hi:

When you enter on K-1, YOU are authorized to work pursuant to status. Initially for 90 days. There is an argument to be made from the language of the statute under section 214(d) that you do not become deportable as an overstay if you marry the petitioner within 90 days. This argument has never been supported, NOR overruled by case law in the 22 years the relevant statute has been on the books. The work card is but evidence of the statutory authorization.

However, under the regulations, a United States employer cannot hire you without presentation of a work authorization. Any US employer who hires you without that employment card is subject to a $100 paperwork fine.

I may be a lawyer, but I am not your lawyer. The above is just a general statement of the law and is not to be considered legal advice in any way.

I have visited BE enough to know that this poster is an immigration lawyer

Also this, from meauxna:

Apropos of nothing...

Unauthorized employment has routinely been forgiven at the Adjustment interview.

Again from Folinkyinla in response to meauxna:

Hi:

In other than immediate relative cases authorized employment is a BAR to adjustment unless there is qualification under 245(i).

In an immediate relative case, assuming the person is not an EWI, unauthorized employment is irrelevant unless the person lied on an I-9. There is nothing to "forgive" -- it just doesn't matter.

It appears this issue is much like adjusting on VWP....a grey area

[rebeccajo 14]

But not in this thread, right? One that has been learning about the process for many years has read a lot of info that suggests this issue is not as clear cut as you suggest this is....with people (Gary, Krikit and others) who have consulted with the USCIS and found a different point of view than the one you are putting forward.

When searching BE I found this thread:

http://britishexpats.com/forum/showthread....eign+employment

interesting tidbits:

Hi:

When you enter on K-1, YOU are authorized to work pursuant to status. Initially for 90 days. There is an argument to be made from the language of the statute under section 214(d) that you do not become deportable as an overstay if you marry the petitioner within 90 days. This argument has never been supported, NOR overruled by case law in the 22 years the relevant statute has been on the books. The work card is but evidence of the statutory authorization.

However, under the regulations, a United States employer cannot hire you without presentation of a work authorization. Any US employer who hires you without that employment card is subject to a $100 paperwork fine.

I may be a lawyer, but I am not your lawyer. The above is just a general statement of the law and is not to be considered legal advice in any way.

I have visited BE enough to know that this poster is an immigration lawyer

Also this, from meauxna:

Apropos of nothing...

Unauthorized employment has routinely been forgiven at the Adjustment interview.

Again from Folinkyinla in response to meauxna:

Hi:

In other than immediate relative cases authorized employment is a BAR to adjustment unless there is qualification under 245(i).

In an immediate relative case, assuming the person is not an EWI, unauthorized employment is irrelevant unless the person lied on an I-9. There is nothing to "forgive" -- it just doesn't matter.

It appears this issue is much like adjusting on VWP....a grey area

And if you believe it is grey, what should be the advice to readers?

Edited November 13, 2009 by rebeccajo

[Trompe le Monde 1,107]

and what in that thread suggests its black and white? Like much of the law, I have seen no evidence of this in the years I have read and contributed to immigration sites that working or freelancing for a company in the home country is specifically illegal.

[William33 110]

We are reduced to "interpretation" of regulations at this stage, given the well documented disagreements.. Rather than continue on this course of "debate", let the readers decide the best solution in this case. Continuing this debate will not reach resolution.

[rebeccajo 14]

and what in that thread suggests its black and white? Like much of the law, I have seen no evidence of this in the years I have read and contributed to immigration sites that working or freelancing for a company in the home country is specifically illegal.

Specifically illegal? Is that some new area of behavior? Kind of like horseshoes or hand-grenades?

Anywho - I believe we've been talking mostly about that time frame before an employment authorization document is issued, correct? Because I'm not going to stand here and argue that if you possess a fee Service document (EAD) and your employer chooses to disregard it (either foreign or US) that the alien has acted improperly. You could produce the document if anyone asked. If anyone thought that was my argument - well I apologize for having been unclear.

I would refer you to this memo from 2006 written by then USCIS Director Gonzalez in response to the Ombudsmen.

http://www.dhs.gov/xlibrary/assets/CISOmbu...se-06-20-06.pdf

This section specifically:

"USCIS does not consider automatic employment authorization for K-1 nonimmigrants to be

consistent with the intent of the underlying benefit. The K-1 nonimmigrant visa is designed to

enable an alien with a bona fide intention to marry a U. S. citizen to enter the United States and enter

into a valid marriage in the United States within 90 days after the alien's arrival. (See 8 C.F.R. §

214(d)). Thus, the purpose of the K-1 visa is to provide a family-based benefit in facilitating

marriage between a foreign national and a U.S. citizen. Its purpose is not to provide an avenue for

employment within the United States. This interpretation is supported by the short 90 day duration

of the K-1 nonimmigtant visa with no opportunity for an extension. By contrast, granting

employment authorization automatically to K-1 aliens appears to conflict with the temporary,

nonimmigrant and family-based nature of the K-1 visa. USCIS instead plans to propose to eliminate

employment eligibility for K-1 nonimmigrants, in order to be more consistent with the overall intent

of the K- 1 visa."

We can go around here in circles about how working without authorization will be 'forgiven' when the adjustment is approved. Or that (as Folyinskyla states) it just doesn't matter. I've never contended any of that is false. But that is adjustment of status. It isn't 'prior to it'.

We can talk about how not having to fill out an I-9 (thereby avoiding having to lie about possessing an EAD) means the alien did nothing wrong. That sort of argument reminds me of trying to strain a volleyball through a piece of cheesecloth.

In my conservative opinion regarding preservation of legal status for the K entrant, all you have to do is ask yourself what is the purpose of the K visa? To form a family unit. Not to work. Working without a fee Service document is a risk. No matter how miniscule a risk some may claim.

[rebeccajo 14]

We are reduced to "interpretation" of regulations at this stage, given the well documented disagreements.. Rather than continue on this course of "debate", let the readers decide the best solution in this case. Continuing this debate will not reach resolution.

Oh hai William! Are you my new babysitter?

PS - I was working on my post while you were at yours.

[William33 110]

We are reduced to "interpretation" of regulations at this stage, given the well documented disagreements.. Rather than continue on this course of "debate", let the readers decide the best solution in this case. Continuing this debate will not reach resolution.

Oh hai William! Are you my new babysitter?

PS - I was working on my post while you were at yours.

No, just trying to keep the peace. The endless debating on this topic will never reach conclusion.

[rebeccajo 14]

We are reduced to "interpretation" of regulations at this stage, given the well documented disagreements.. Rather than continue on this course of "debate", let the readers decide the best solution in this case. Continuing this debate will not reach resolution.

Oh hai William! Are you my new babysitter?

PS - I was working on my post while you were at yours.

No, just trying to keep the peace. The endless debating on this topic will never reach conclusion.

I know. But some people think I just want to have the last word, ya know? And that's never my intention, despite perceptions.

[Trompe le Monde 1,107]

Specifically illegal? Is that some new area of behavior? Kind of like horseshoes or hand-grenades?

meaning spelled out by a statute and not open to one individual's interpretation.....not something that is in letter of the law but not the spirit of the law

[rebeccajo 14]

Specifically illegal? Is that some new area of behavior? Kind of like horseshoes or hand-grenades?

meaning spelled out by a statute and not open to one individual's interpretation.....not something that is in letter of the law but not the spirit of the law

Oh ok. I'm having a hard time with the double negative there, but.........I've said what I came to say.

[TracyTN 237]

I thought VJ was a place for debate and conjecture about just such things. I didn't see anyone here get nasty, so I don't really see why it matters that the debate went on. *shrugs*

[Usui Takumi 1,562]

But not in this thread, right? One that has been learning about the process for many years has read a lot of info that suggests this issue is not as clear cut as you suggest this is....with people (Gary, Krikit and others) who have consulted with the USCIS and found a different point of view than the one you are putting forward.

When searching BE I found this thread:

http://britishexpats.com/forum/showthread....eign+employment

interesting tidbits:

Hi:

When you enter on K-1, YOU are authorized to work pursuant to status. Initially for 90 days. There is an argument to be made from the language of the statute under section 214(d) that you do not become deportable as an overstay if you marry the petitioner within 90 days. This argument has never been supported, NOR overruled by case law in the 22 years the relevant statute has been on the books. The work card is but evidence of the statutory authorization.

However, under the regulations, a United States employer cannot hire you without presentation of a work authorization. Any US employer who hires you without that employment card is subject to a $100 paperwork fine.

I may be a lawyer, but I am not your lawyer. The above is just a general statement of the law and is not to be considered legal advice in any way.

I have visited BE enough to know that this poster is an immigration lawyer

Also this, from meauxna:

Apropos of nothing...

Unauthorized employment has routinely been forgiven at the Adjustment interview.

Again from Folinkyinla in response to meauxna:

Hi:

In other than immediate relative cases authorized employment is a BAR to adjustment unless there is qualification under 245(i).

In an immediate relative case, assuming the person is not an EWI, unauthorized employment is irrelevant unless the person lied on an I-9. There is nothing to "forgive" -- it just doesn't matter.

It appears this issue is much like adjusting on VWP....a grey area

Just a question on this post Trompe le Monde. Why do you think that the lawyer in this post regarding working for a UK employer would specifically reference a US employer in regards to the law?

[Trompe le Monde 1,107]

But not in this thread, right? One that has been learning about the process for many years has read a lot of info that suggests this issue is not as clear cut as you suggest this is....with people (Gary, Krikit and others) who have consulted with the USCIS and found a different point of view than the one you are putting forward.

When searching BE I found this thread:

http://britishexpats.com/forum/showthread....eign+employment

interesting tidbits:

Hi:

When you enter on K-1, YOU are authorized to work pursuant to status. Initially for 90 days. There is an argument to be made from the language of the statute under section 214(d) that you do not become deportable as an overstay if you marry the petitioner within 90 days. This argument has never been supported, NOR overruled by case law in the 22 years the relevant statute has been on the books. The work card is but evidence of the statutory authorization.

However, under the regulations, a United States employer cannot hire you without presentation of a work authorization. Any US employer who hires you without that employment card is subject to a $100 paperwork fine.

I may be a lawyer, but I am not your lawyer. The above is just a general statement of the law and is not to be considered legal advice in any way.

I have visited BE enough to know that this poster is an immigration lawyer

Also this, from meauxna:

Apropos of nothing...

Unauthorized employment has routinely been forgiven at the Adjustment interview.

Again from Folinkyinla in response to meauxna:

Hi:

In other than immediate relative cases authorized employment is a BAR to adjustment unless there is qualification under 245(i).

In an immediate relative case, assuming the person is not an EWI, unauthorized employment is irrelevant unless the person lied on an I-9. There is nothing to "forgive" -- it just doesn't matter.

It appears this issue is much like adjusting on VWP....a grey area

Just a question on this post Trompe le Monde. Why do you think that the lawyer in this post regarding working for a UK employer would specifically reference a US employer in regards to the law?

Well, I'm not a lawyer, but it appears the law specifically refers to a US employer, and not a foreign employer.

I wonder if its analogous to not being able to work for a US employer when visiting on VWP, but being able to conduct business on VWP as part of a business trip? I know people on VJ have "worked" for their foreign employer remotely while visiting their SOs on VWP trips.

[Usui Takumi 1,562]

Btw. When you talked to the Immigration Officer did he mention or highlight any risks regarding employment? I have to admit I wasn't in a place to probe since we were in an interview and our focus was on just getting through the interview okay.

[Flyer92 2]

Guys, I hope this point comes through clearly. Unless you are adjusting from a status that allows you to accept employment or hire with compensation involved or not involved, you cannot work, volunteer or accept employment prior to receiving permission for the Department of Homeland Security. It is quite charitable to volunteer ones time, but immigration laws deem "volunteering" as work or accepting employment.

*Len* had it correct, needless to say. Gary and Alla's post about the business consideration has very serious pitfalls unless you do the required research. Business and immigration laws require certain requirements be met where a non-US Citizen is involved as owner or have controlling interest (partner) in the business. With respect to the scenario outlined in the OP, again, your existing status prior to AOS or employment authorization will determine whether you can "volunteer". From what I've read, your case suggests you will be out of compliance with immigration laws.