EAD

[WifeOHunkyJohn 2]

I'm still trying to verify the answer through official sources, but on immigration.com it says the following about EAD in their FAQ:

Q7 What happens if my nonimmigrant employment authorization expires after I file for AOS if I don't have an EAD?

A7

There is no penalty that attaches to an applicant for AOS. The applicant's employer, however, would be subject to being fined for employing the applicant without authorization.

[Index] [Compiled by Law Offices of Rajiv S Khanna]

[rebeccajo 14]

We know that USCIS cannot currently punish Green Card applying spouses of USCs for working illegally, but what I'm not clear on is: Is someone who is working without an EAD actually breaking any law themselves?

I know. That's what I wonder sometimes too.

I wonder if you aren't not breaking a law...but perhaps putting yourself in a situation where a future immigration benefit could be denied?

[John & Annie 0]

We know that USCIS cannot currently punish Green Card applying spouses of USCs for working illegally, but what I'm not clear on is: Is someone who is working without an EAD actually breaking any law themselves?

I know. That's what I wonder sometimes too.

I wonder if you aren't not breaking a law...but perhaps putting yourself in a situation where a future immigration benefit could be denied?

Which is precisely what I am wondering and were I the immigrant, I would not even go down that road. If they were going to deport a guy for firing a gun to scare off a robber....what would they do if you worked during a lapse. Again, this is a road that I would not go down. To each, his or her own decision is to be made.

[WifeOHunkyJohn 2]

I found this: source and if anyone can explain it in layman's terms, it might have the answer.

It says: [on adjusting status, as per the Immigration and Nationality act]

(k) Inapplicability of certain provisions for certain

employment-based immigrants

An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 1153(b ) of this title (or, in the case of an alien who is an immigrant described in section 1101(a)(27)(C ) of this title, under section 1153(b )(4) of this title) may adjust status pursuant to subsection (a) of this section and notwithstanding subsection (c )(2), (c )(7), and (c )(8) of this section, 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.

I *think* it says that someone who works without permission (for more than 180 days?) is not allowed to adjust status. Then again, I find the language practically incomprehensible so there's a chance it doesn't say that at all.

The USCIS website puts the onus on the employer for making sure their employees are legal to work: "U.S. employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you are not a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the United States." [source]

It also says that the employer is not punished if the employee was taken on in good faith but once they (the employer) is told that someone is illegal, the employer is then responsible for ceasing their employment. I so far have not found the words "it is illegal to work without permission in the USA" - but that doesn't mean it isn't, it just means I haven't found it yet.

[source]

EMPLOYEE’S RESPONSIBILITY REGARDING FORM I-9

A new employee must complete Section 1 of a Form I-9 no later than close of business on his/her first day of work. The employee’s signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full. No documentation from the employee is required to substantiate Section 1 information provided by the employee.

DISCOVERING UNAUTHORIZED EMPLOYEES

It occasionally happens that an employer learns that an employee whose documentation appeared to be in order for Form I-9 purposes is not actually authorized to work. In such case, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued (alien employees who question the employer’s determination may be referred to an Immigration field office for assistance).

I also looked up "naturalization" to see if there was anything there, and it says that you have to be of good moral character [source] but that, among others, lying or fraud (or drunk driving [source]) will bar you from qualifying to be naturalized. It doesn't say working without permission but that might be grey area speak for fraud since fraud may technically include 'working without permission'.

If anybody has a clear yes or no answer to whether it is illegal to work without permission, let us know. The above is the best I can do and, even then, I am sticking with "maybe".

[Dr_LHA 3]

Thats only for people getting Green Cards based on employment. If you're married to a USC there's a specific exemption in the INA that means that USCIS cannot deny AOS because you worked illegally.

[WifeOHunkyJohn 2]

Thats only for people getting Green Cards based on employment. If you're married to a USC there's a specific exemption in the INA that means that USCIS cannot deny AOS because you worked illegally.

So does that mean there isn't any point applying for an EAD because they will overlook it anyway? Sounds like a gamble to me...

[Dr_LHA 3]

So does that mean there isn't any point applying for an EAD because they will overlook it anyway? Sounds like a gamble to me...

This is the point I made earlier, yes. In a perfect world all employers would know the law regarding I-9s and that law would be enforced, meaning EADs would be necessary to work. Sadly the world isn't perfect.

Here is the relevant section of the INA, which describes who will be denied AOS, the bit in brackets in the relevant portion for us.

(2) an alien (other than an immediate relative as defined in section 201(B ) or a special immigrant described in section 101(a)(27)(H), (I), (J), or (K)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States;

This is the part of the law that forgives overstay or illegal work if you are married or related to a USC.

Edited February 15, 2007 by dr_lha

[rebeccajo 14]

Title 8: Aliens and Nationality

PART 214—NONIMMIGRANT CLASSES

§ 214.1 Requirements for admission, extension, and maintenance of status.

(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)© of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)©(i) of the Act.

Edited February 15, 2007 by rebeccajo

[Dr_LHA 3]

OK, so working illegally means that you go "out of status" it would appear. However the INA doesn't allow USCIS to hold time "out of status" against you, so does it really matter?

Essentially I guess what you're quoting allows UCSIC/ICE to deport you for working illegally if you're on a non-EA visa. That's the closest I've seen to stating its actually illegal to work if you're not EA. However can you be deported while AOS is pending?

Edited February 15, 2007 by dr_lha

[rebeccajo 14]

Duh.......I dunno. I know I dug and dug one night a few weeks ago into some clarification about EAD's lapsing and subsequent renewal, and I couldn't find anything that I considered conclusive saying it was OK to work without one. I mean - the penalties to the employer would be the same - but you have that same old caveat that working without authorization is forgiven because of the family relationship.

As a K1 adjustee, you don't really have status a defined status. I guess if they wanted too, they might be able to say you violated your K1 status by working without proper documentation?

I think what we've just done is shown why lawyers say immigration law is so complex because of its layers and because of its different immigrant categories.

Edited February 15, 2007 by rebeccajo

[John & Annie 0]

its so nice to see you playing well together.

This may very well be the reason they want to remove the EA status from K1.

That would make all of this conjecture moot.

Theoretically, if we take this assumption, a K1 would just need to get someone to hire them and all would be forgiven. Provided the employed wanted no further proof than the initial proof provided.

Edited February 15, 2007 by John & Annie

[rebeccajo 14]

Hee hee......we know how to kiss and make up..........

As far as getting rid of the temp EAD, I think that's a contemplation in order to encourage people to get their AOS filed. I kinda feel that way because of the announcement that when fee increases kick in, AOS will come with an EAD and AP automatically.

Edited February 15, 2007 by rebeccajo

[Dr_LHA 3]

All of these issues would be solved if the US government actually spent some time enforcing the rules with employers as to who you can hire. Sadly it seems building a fence is more important than actually spending time rules already in law that would do much to stem the tide of illegal workers in the USA.

[John & Annie 0]

All of these issues would be solved if the US government actually spent some time enforcing the rules with employers as to who you can hire. Sadly it seems building a fence is more important than actually spending time rules already in law that would do much to stem the tide of illegal workers in the USA.

unfortunately the problem is more systemic than that. I do not know if this is right forum to be going down that road.

Edited February 15, 2007 by John & Annie

[Dr_LHA 3]

Yeah, lets not go off topic.