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

[I'm Gone 60]

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.

If you didn't get one ask for an SSN Verification Printout. Not the same as having a card, but better than nothing until a card can be issued.

https://s044a90.ssa.gov/apps10/poms.nsf/lnx/0100202320

RM 00202.320 Issuing Numidents and SSN Verification Printouts

[I'm Gone 60]

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?

Amazing that people that have been a member for less than a month know everything or that everyone else is wrong. LOL

Sec. 274a.12 Classes of aliens authorized to accept employment.

(a) Aliens authorized incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)-(8), or (a)(10)-(16) of this section, and who seeks to be employed in the United States, must apply to the Bureau of Citizenship and Immigration Services (BCIS) for a document evidencing such employment. BCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States.

(6) An alien admitted to the United States as a nonimmigrant fiancé or fiancee 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

Once again I will tell my story. At one time SSA also required a K-1 to either have an EAD card or work authorization stamp, but at that time INS was having trouble getting EAD cards out to K-1s under the A6 catagory before the 90 day K-1 period had expired. So SSA wrote the infamous EM-00154 that is now part of POMS section RM 00203.500 C1. Nothing in the law changed regarding K-1 work authorization, just SSA changed their procedure to allow K-1s to use the I-94.

Edited May 13, 2007 by I Quit

[Johnnie Oz 0]

Amazing that people that have been a member for less than a month know everything or that everyone else is wrong. LOL

Once again I will tell my story. At one time SSA also required a K-1 to either have an EAD card or work authorization stamp, but at that time INS was having trouble getting EAD cards out to K-1s under the A6 catagory before the 90 day K-1 period had expired. So SSA wrote the infamous EM-00154 that is now part of POMS section RM 00203.500 C1. Nothing in the law changed regarding K-1 work authorization, just SSA changed their procedure to allow K-1s to use the I-94.

Thanks for re-telling your story. BTW, of course I never thought I knew everything - some people might have gotten that impression while others did not. in the eyes of the beholder.....

But point taken that I was a tad provocative. Thanks again.

[Johnnie Oz 0]

meauxna and KitKat

Thanks for your replies too. KitKat was right from the very beginning, but from my initial readings of other sources I couldn't accept this. Happens all the time. Some people read nothing and post questions that would take a second to look up. Others read lots and find (or think they do) a loophole somewhere....

I was stubborn since I couldn't wrap my mind around the fact that employers can be punished for hiring:

a) work authorized K1s with SSN but without EAD or that arbitrary I-94 stamp

B) non-work authorized but legal K3s without anything

c) undocumented/illegal workers

"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"

Indulge me with this little scenario....

Do you think an employer could expect leniency in case a) since as Yodrak and Dr LHA also state: a K1 is work authorized even without the proper documentation? The K3 would NOT allow us to make this argument.

I mean, if you can get a job by convincing the employer that the document has been applied for (some proof of this) and the whole point of your visa is that you are de jure already work authorized?

Sure they might be taking a risk, but I would love to hear about a case where a K1 was working like this and employer got busted. Or perhaps it's the K1 who would be punished.

Yes, this has been dealt on VJ with a hundred times, but I can't find a specific situation where this happened.

My humble assumption would be that the absurdity of this situation would then be exposed. Still, as I know you've pointed out KitKat (I do read your posts inc the first one ) few would take this kind of risk.

Oh well.

[Dr_LHA 3]

Do you think an employer could expect leniency in case a) since as Yodrak and Dr LHA also state: a K1 is work authorized even without the proper documentation? The K3 would NOT allow us to make this argument.

If ICE decides to go after an employer I doubt there would be any leniency for minor technicalities. They will simply see an infraction based on the employer ignoring the I-9 requirements.

That said, employers are rarely busted for breaking the I-9 requirements. Go to California for example and see how many illegal immigrants are working in the service industry and agriculture, and tell me that ICE enforces the law anything other than infrequently. ICE busts tend to be big token gestures, rather than meticulous enforcement of the law.

[kitkat1 5]

There was a recent post of a visa holder who was waiting for his updated EAD or something like that. When his employer noticed that his EAD was not current, they threatened to not pay for the time worked.

It does happen. Most employers are not stupid about this and not willing to take the chance of being audited and fined for hiring someone who does not have the proper authorization to work.

http://hr.blr.com/news.aspx?id=75673

April 02, 2007

Company Execs Sentenced for Hiring Unauthorized Workers

http://www.visalawint.com/index.aspx?page=I-9ComplianceUS

01/26/2007

I-9 Compliance-Avoiding Immigration Bombshells

Employers are required under that law to verify the identity and work authorization status of every employee of the business. The mechanism for compliance is the I-9 Employment Verification Form that every worker must complete on the day of hire or earlier. Failure to comply with IRCA’s I-9 rules can result in significant fines, loss of access to government contracts and highly negative publicity for a company.

What penalties does an employer face for I-9 violations?

Employers can face stiff penalties for IRCA violations that include substantial fines and debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. Fines for hiring unauthorized workers will amount to anywhere from $250 to $5,500 per worker depending on the prior history of violation

[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.

If you didn't get one ask for an SSN Verification Printout. Not the same as having a card, but better than nothing until a card can be issued.

https://s044a90.ssa.gov/apps10/poms.nsf/lnx/0100202320

RM 00202.320 Issuing Numidents and SSN Verification Printouts

Ya we got that. It's good enough for everything except employment.

[Johnnie Oz 0]

It does happen. Most employers are not stupid about this and not willing to take the chance of being audited and fined for hiring someone who does not have the proper authorization to work.

http://www.visalawint.com/index.aspx?page=I-9ComplianceUS

01/26/2007

I-9 Compliance-Avoiding Immigration Bombshells

Excellent link, KitKat!

I found this section enlightening - though of course they have a vested interest in getting you to see a lawyer:

"What documentation must an employee present along with an I-9 Form?

Employees must present documentation of identity and work authorization and can present documents from a pre-set list included in the I-9 Form’s instructions. Some documents, like a US passport or a permanent residency card, can prove both identity and that one is legal to work. Some documents, like a driver’s license, prove identity only and some documents, like a social security card (other than a card stating it is not valid for employment) prove work eligibility. Employers are not allowed to tell employees which documents from the pre-set list they must present. Occasionally, an employee is authorized to work, but they have not been issued a document on the list. In such a case, an immigration lawyer may be able to provide a legal memorandum for an employer documenting the authorization to work and that will normally insulate an employer from liability. In some of these cases, the worker is entitled to 90 days to get the documentation to the employer though there are occasional cases where more time is permitted."

I guess this could apply to the K1, but he/she will then likely run into the limbo between their K1 EAD and getting the 1 year EAD.

Interesting to note that it says that you may have 90 days (or even more) to produce the document. This could provide a K1 with opportunity to get their hands on the one year EAD without stopping working - having started with a stamped I-94 or proof of EAD application (whether it's the K1 90 day one or the longer 1 year, though the latter would be preferable for obvious reaons). Nice.

But I guess most employers won't even go there and if they do, they would be concerned about the period between the K1 EAD and the 1 Year EAD - even it's just a week.

Thanks

[Kez/JWolf 6]

That 90 days to produce the EAD are for people renewing EAD or who ave lost their EAD.... the temp EAD give to K1 and the 1 year EAD given to AOS applicants are diffrent catagories a6 & c9 so it is not a renewal it is a fresh application.....

Kez

[Dr_LHA 3]

Interesting to note that it says that you may have 90 days (or even more) to produce the document. This could provide a K1 with opportunity to get their hands on the one year EAD without stopping working - having started with a stamped I-94 or proof of EAD application (whether it's the K1 90 day one or the longer 1 year, though the latter would be preferable for obvious reaons). Nice.

The 90 days doesn't negate the fact that a worker must be Employment authorised, which after 90 days on a K-1 you are not. If a K-1 can arrive in the USA, get married and file AOS in less than a week after getting their EAD stamp then its possible there could be no break in Employment Authorisation, but really even that is pushing it.

If you apply for EAD shortly before your 90 day K-1 EAD expires, then you are not legal to work again until your new EAD is approved. Once it is approved, you can sign the I-9 and you have 90 days to show the card, so officially you can start work before you actually have the card in your hand. In reality however, most employers will not let you work unless they see the card themselves.

Edited May 14, 2007 by Dr_LHA

[Dr_LHA 3]

That 90 days to produce the EAD are for people renewing EAD....

Not really. If your EAD expires, you must have a new EAD approved already for you to not have to stop working.

[kitkat1 5]

But I guess most employers won't even go there and if they do, they would be concerned about the period between the K1 EAD and the 1 Year EAD - even it's just a week.

That was the case of the recent poster whose employer refused to pay her or allow her to work because there was a gap in the original EAD and the renewal.

[Johnnie Oz 0]

Dr LHA wrote

The 90 days doesn't negate the fact that a worker must be Employment authorised, which after 90 days on a K-1 you are not. If a K-1 can arrive in the USA, get married and file AOS in less than a week after getting their EAD stamp then its possible there could be no break in Employment Authorisation, but really even that is pushing it.

If you apply for EAD shortly before your 90 day K-1 EAD expires, then you are not legal to work again until your new EAD is approved. Once it is approved, you can sign the I-9 and you have 90 days to show the card, so officially you can start work before you actually have the card in your hand. In reality however, most employers will not let you work unless they see the card themselves.

This discussion is great: at least if you're a detailed-obsessed character like yours truly!

Another detail: IF the 1 year EAD is approved (no actual card in hand yet) before the K1 with EA stamp expires, what is the validity of the latter? In other words, do you then have two concurrent EAs in the system and could this cause problems?

One more related thing: if you do have the EA stamp, is this something you mention when you apply for the 1 year EAD? You know, so as to let them flow into each other.... I know I'm thinking it should all be smooth when it can't be, but hey

Thanks

[Kez/JWolf 6]

The EAD Stamp is not connected to the EAD you apply for along with or after AOS..... so no they dont flow into each other.... they are 2 seperate applications with employment approved under diffrent classes.... a6 for K1 & c9 for AOS and therefor are not linked in any way......

Kez

[Dr_LHA 3]

Another detail: IF the 1 year EAD is approved (no actual card in hand yet) before the K1 with EA stamp expires, what is the validity of the latter? In other words, do you then have two concurrent EAs in the system and could this cause problems?

No, because the new EAD would be based on AOS rather than the K-1 visa. That said the chances of having both approved AOS EAD and K-1 90 day EAD at the same time, are slim.

One more related thing: if you do have the EA stamp, is this something you mention when you apply for the 1 year EAD? You know, so as to let them flow into each other.... I know I'm thinking it should all be smooth when it can't be, but hey

Nope.

Edited May 15, 2007 by Dr_LHA