K1, SSN, I-9 and the right to work (revisited)

[Johnnie Oz 0]

Thanks Yodrak! Great answer.

Reading the INA and related federal regulations sure reminds me of going to the dentist! But I'll have a look again.

Interesting that you say the INA give K1s implicit EA while K3s are not afforded this. Yet, in reality they must both apply for it, and get an EAD - the one exception being the K1 folks flying via the "right" POE. Mind-boggling.

Does the fact that a K1 can actually get a SSN beforehand (but the K3 can't) make any difference here? Help expedite the EAD processing?

BTW, read on another forum that the US Consulate in Vancouver give K3 visa holders an info sheet on how to proceed. Among other things on that sheet: make sure you get a EA stamp on your I-94 at POE. Madness....

Perhaps they've changed that now.

[Dr_LHA 3]

Does the fact that a K1 can actually get a SSN beforehand (but the K3 can't) make any difference here? Help expedite the EAD processing?

No. EAD processing has nothing to do with having a social security number. EADs take about 90 days to be approved and delivered.

BTW, read on another forum that the US Consulate in Vancouver give K3 visa holders an info sheet on how to proceed. Among other things on that sheet: make sure you get a EA stamp on your I-94 at POE. Madness....

Yeah, USCIS often give out crappy information to us regular joes, for example the USCIS "mis"information hotline are well renoun for it, which is why you need forums like this.

[garya505 2]

Is anyone having trouble getting a SSN? We have been to the local SSA office 3 times now since March 22 when we first applied. The first application got "lost", the record of it simply vanishing from their computer. We never got any mail or phone calls. We applied for a second time two weeks ago, at which time they said they would call us because we're having so much trouble. They never called and we have received nothing in the mail. #######???

[Johnnie Oz 0]

JOhnnie Oz wrote:

K1, like a H1B, is an alien "Work Authorized Without Specific DHS Authorization"

KitKat wrote:

No. A K1 is authorized to work "WITH SPECIFIC DHS AUTHORIZATION".

KitKat,

I'm sorry that you're tired of reading my "countless" threads. here's another one for ya. I'm cautiously optimistic that you'll find it interesting at least.

First, the comment of yours above is what I didn't get. Where did you get this quote? or was it not a quote?

I got mine from the SSA - yes, I know they have no say in who's actually work authorized, just in who they think is work authorized for SSN applications.

But they sure make all kinds of confusing claims to say the least.

Here's another gem from them:

"NOTE: DHS does not issue EAD cards to aliens lawfully admitted for permanent residence or nonimmigrants whose work authorization is incident to their class of admission." taken from that infamous link, Click here

So my question is:

who are these "nonimmigrants whose work authorization is incident to their class of admission"?

According to the SSA, this includes H1B and K1.

This would mean that a SSA employee when asked by the K1:

"can I work as soon as I have my SSN or do I need an EAD?"

might say something like:

"honey, you don't need an EAD, in fact it says here in my manual that DHS does not issue them to people in your class. So go ahead and

work."

The K1 would then look for work, not having applied for the EAD, and wind up being turned down for the job when filling out the I-9 due to the lack of EAD. Nice. Someone needs to tell SSA this. Yes, we need to do our own research, but they sure are trying to make things hard by confusing us.

Am I correct in stating that H1Bs and K1s are both authorized to work, but in the case of the K1 the employer "needs" some further proof than the I-94, ie a stamp or EAD?

But the H1B's employer when filling out the I-9 does not need this proof since they are employing the person they sponsored? Makes sense I guess, esp since the H1B is a work visa. Makes sense but still...

This leaves me room to think that it's not necessarily explicitly illegal to hire the K1, but that the employer (someone you've never met before and who didn't sponsor you) doesn't know this. Is this why a K1 will not be able to work, rather than it being clearly illegal?

And yes, KitKat, we should just talk to a HR department, who can then contact DHS. And so we shall. Good pointer! Thanks

Good luck to all!

[Dr_LHA 3]

Work authorisation for H-1B and K-1 are both dependant on something other than the Visa stamp.

In the case of the H-1B, there is a requirement to show both the I-94 and the I-797 Notice of Action that gets sent when the H-1B case is approved. The name of the employer on the I-797 must match that of the employer for the employment authorisation to be valid. If the employee loses their job they cannot work for someone else, as the employment authorisation was based purely on that particular employer.

For K-1, again the Visa does not prove employment authorisation. In that case the EAD does, whether it be a stamp on the I-94 or a seperate card.

So in answer to your question:

Am I correct in stating that H1Bs and K1s are both authorized to work

Only if they have the correct supporting documents.

[Yodrak 7]

Johnnie Oz,

In reality the K1 person who submits an I-765 on the basis of their status (code (a)(6)) is not applying for EA, they already are EA. They are applying to get the EA ID card only.

Yodrak

....

Interesting that you say the INA give K1s implicit EA while K3s are not afforded this. Yet, in reality they must both apply for it, and get an EAD - the one exception being the K1 folks flying via the "right" POE. Mind-boggling.

.....

[Yodrak 7]

Dr_LHA,

In this case it was the DoS giving out crappy DHS information? One might wish that an employee of the former would know the other's role given that both deal with immigration issues, but the roles of DoS and DHS are different so it's not entirely surprising if they don't always.

Yodrak

BTW, read on another forum that the US Consulate in Vancouver give K3 visa holders an info sheet on how to proceed. Among other things on that sheet: make sure you get a EA stamp on your I-94 at POE. Madness....

Yeah, USCIS often give out crappy information to us regular joes, for example the USCIS "mis"information hotline are well renoun for it, which is why you need forums like this.

[Dr_LHA 3]

Dr_LHA,

In this case it was the DoS giving out crappy DHS information? One might wish that an employee of the former would know the other's role given that both deal with immigration issues, but the roles of DoS and DHS are different so it's not entirely surprising if they don't always.

Yodrak

Yes, my mistake. Of course it was the DOS who was giving out the crappy information here, if the information was coming from a consulate.

Still the fact remains that USCIS (at least in the guise of the USCIS hotline) does give out a lot of crappy information!

[Yodrak 7]

Dr_LHA,

To be pedantic K-1s are authorized to work whether or not they have the correct supporting documents. They just can't prove it in the required fashion.

Yodrak

.....

So in answer to your question:

Am I correct in stating that H1Bs and K1s are both authorized to work

Only if they have the correct supporting documents.

Indeed they do! The USCIS may have had a good idea in closing down the SC phone lines and opening the NCSC, but it was very poorly implemented.

Yodrak

.....

Still the fact remains that USCIS (at least in the guise of the USCIS hotline) does give out a lot of crappy information!

[Dr_LHA 3]

Dr_LHA,

To be pedantic K-1s are authorized to work whether or not they have the correct supporting documents. They just can't prove it in the required fashion.

I knew you'd say that. Of course, you are right.

Still all the employment authorization in the world does you no good if you can't meet the I-9 requirements.

[Johnnie Oz 0]

Dr_LHA,

To be pedantic K-1s are authorized to work whether or not they have the correct supporting documents. They just can't prove it in the required fashion.

I knew you'd say that. Of course, you are right.

Still all the employment authorization in the world does you no good if you can't meet the I-9 requirements.

You guys are great! This answer was the one I needed to shut me up - others will be grateful.

K1s are authorized to work but just can't prove it without the EAD. This is what's so frustrating, esp. with those processing times.

Was also reading the Electronic Code of Federal Regulations (please click here where it clearly states that fiance(e)s need:

from Title 8, § 274a.12 Classes of aliens authorized to accept employment.

(a)

(6) An alien admitted to the United States as a nonimmigrant fiancé or fiancée 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;"

CONVERSELY, those who do NOT need this document, in fact it won't be issued to them:

from Title 8, § 274a.12 Classes of aliens authorized to accept employment.

(B)

Aliens authorized for employment with a specific employer incident to status. The following classes of nonimmigrant aliens are authorized to be employed in the United States by the specific employer and subject to the restrictions described in the section(s) of this chapter indicated as a condition of their admission in, or subsequent change to, such classification. An alien in one of these classes is not issued an employment authorization document by the Service:

e.g.

" (9) A temporary worker or trainee (H–1, H–2A, H–2B, or H–3), pursuant to §214.2(h) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional H–2B athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new Form I–129 to petition for H–2B classification. If a new Form I–129 is not filed within 30 days, employment authorization will cease. If a new Form I–129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease;"

There is a distinction made here between K1 and K3s - try to see if you understand it. It says the K3 needs an EAD to work, but K3s are NOT included in the list of admission classifications that MUST apply for one via BCIS. Is this b/c they can apply via the Embassy/ DoS as part while waiting in their foreign domiciles? K1s cannot do this for obvious reasons and must enter US, marry and then apply for EAD.

cheers

[kitkat1 5]

You guys are great! This answer was the one I needed to shut me up - others will be grateful.

K1s are authorized to work but just can't prove it without the EAD. This is what's so frustrating, esp. with those processing times.

Right. That's exactly what several of us posted in response to your very first thread. But you disputed that.

As you can no doubt imagine, this topic has been discussed again and again and again. The K1 is work authorized meaning you have the right to work with proper authorization. A SSN is not proper authorization and SSA does not make the rules regarding work authorization for visa holders. An Employment Authorization Document is proper authorization. That is the form the employer is required to see in order to comply with the law. If you work without authorization, the employer will face big problems although the visa holder personally will not normally face big problems at AOS.

http://travel.state.gov/visa/immigrants/ty..._2994.html#Work

Can a K-1 Visa Holder Work in the United States?

As a K-1 visa holder you may file Form I-765 Application for Employment Authorization with the USCIS office that serves the area where you live for a work permit (employment authorization document). For more information see How Do I Get a Work Permit (Employment Authorization Document)?

[Yodrak 7]

Johnnie OZ,

I see the distinction, and I think I may understand it. In paragraph (a) I think that the words "the following classes of aliens" does not refer to the following sub-paragraphs (a)(1) - (a)(16), I think it refers to the list of sub-paragraphs in the following sentence, which omits (a)(1), (a)(2), (a)(5), and (a)(9). I think that this is the regulation that tells us that K1 is EA incident to status but K3 is not, and that even though K1 is EA incident to status they must still apply for an EAD if they want to be employed.

Also,

- K3s cannot apply for an EAD via the US consulate in their country prior to entering the USA, and

- K1s do not need to marry prior to applying for an EAD.

Yodrak

You guys are great! This answer was the one I needed to shut me up - others will be grateful.

K1s are authorized to work but just can't prove it without the EAD. This is what's so frustrating, esp. with those processing times.

Was also reading the Electronic Code of Federal Regulations (please click here where it clearly states that fiance(e)s need:

from Title 8, § 274a.12 Classes of aliens authorized to accept employment.

(a)

(6) An alien admitted to the United States as a nonimmigrant fiancé or fiancée 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;"

......

There is a distinction made here between K1 and K3s - try to see if you understand it. It says the K3 needs an EAD to work, but K3s are NOT included in the list of admission classifications that MUST apply for one via BCIS. Is this b/c they can apply via the Embassy/ DoS as part while waiting in their foreign domiciles? K1s cannot do this for obvious reasons and must enter US, marry and then apply for EAD.

cheers

Edited May 10, 2007 by Yodrak

[meauxna 15]

Dr_LHA,

To be pedantic K-1s are authorized to work whether or not they have the correct supporting documents. They just can't prove it in the required fashion.

I knew you'd say that. Of course, you are right.

Still all the employment authorization in the world does you no good if you can't meet the I-9 requirements.

This one's for Johnny Oz..

All the emp auth in the world DOES do a K-1 good even if they can't meet the I-9 reqs. #1, they can get a Social Security card/account, something many K-3s or other AOSers would be oh-so-happy to have immediately. The SS# opens up banking, driving license and other related 'benefits'.

It potentially allows them to be self-employed, or work for a non-US organization.

And, I hear for Canadians, it is an urgent route to collecting Unemployment benefits from the Can gov't.

That's from the top of my head.

[garya505 2]

Well finally SSN success today (sort of). After 7 weeks and 2 application attempts we still had no card in the mail, so we went back to the SSA office. They said the card was mailed, and gave us the number which is all we really need right now. But now they can't request another card because we are within 14 days of the I-94 expiration (their fault), so we have to wait for AOS for that.