A Few EAD Questions Please

[Tracer6158 27]

My fiance's K1 interview is scheduled for Jan 5, 2021 and we want to get the rest of her paperwork rolling as soon as possible including the I-765.  However, we will likely be married on Feb 6.  After we are married, doesn't her 90 day K1 status "fall away" and she then becomes  an legal permanent resident?  And this means that she cannot receive an EAD card based on her K1 status, yes.  Which means we should be filing the I-765 under a different status?  The I-765 instructions notes that an EAD under K1 status only authorizes work during that first 90  day period given to get married.   Any help much appreciated.....fyi, I will be filling the I-485 with the I-765.

Edited December 31, 2020 by Tracer6158

[Marieke H 2,510]

She will be filing for an EAD under eligibility category (c)(9), see the bottom of page 15 of the instructions.

 

https://www.uscis.gov/sites/default/files/document/forms/i-765instr.pdf

 

Filing under her K-1 status would make no sense, because it takes more than 90 days for the EAD to be approved.

Edited December 31, 2020 by Marieke H

[Ed&Midori1031 330]

20 minutes ago, Tracer6158 said:

My fiance's K1 interview is scheduled for Jan 5, 2021 and we want to get the rest of her paperwork rolling as soon as possible including the I-765.  However, we will likely be married on Feb 6.  After we are married, doesn't her 90 day K1 status "fall away" and she then becomes  an legal permanent resident?  And this means that she cannot receive an EAD card based on her K1 status, yes.  Which means we should be filing the I-765 under a different status?  The I-765 instructions notes that an EAD under K1 status only authorizes work during that first 90  day period given to get married.   Any help much appreciated.....fyi, I will be filling the I-485 with the I-765.

Apply for all 3:  the I-485, I-765 and I-131.  Of course once the green card is approved the EAD ap WILL be obsolete.  

 

And no, once married she will not be permanent resident, not until she receives the green card.  Until then, she will be considered "out of status" until applied for Green card.

[Ayrton 965]

28 minutes ago, Tracer6158 said:

My fiance's K1 interview is scheduled for Jan 5, 2021 and we want to get the rest of her paperwork rolling as soon as possible including the I-765.  However, we will likely be married on Feb 6.  After we are married, doesn't her 90 day K1 status "fall away" and she then becomes  an legal permanent resident?  And this means that she cannot receive an EAD card based on her K1 status, yes.  Which means we should be filing the I-765 under a different status?  The I-765 instructions notes that an EAD under K1 status only authorizes work during that first 90  day period given to get married.   Any help much appreciated.....fyi, I will be filling the I-485 with the I-765.

Getting married doesn't give her any status. That's why you file for Adjustment of Status, from K1 to PR. 

 

You will file for EAD based on the pending Adjustment of status application.

Edited December 31, 2020 by Ayrton

[Tracer6158 27]

Thanks everyone...really big help.  😊

[Tracer6158 27]

1 hour ago, Ed&Midori1031 said:

Apply for all 3:  the I-485, I-765 and I-131.  Of course once the green card is approved the EAD ap WILL be obsolete.  

 

And no, once married she will not be permanent resident, not until she receives the green card.  Until then, she will be considered "out of status" until applied for Green card.

Thanks....I need to file the I-130 as well, yes?

[Ayrton 965]

20 minutes ago, Tracer6158 said:

Thanks....I need to file the I-130 as well, yes?

Since he's using a K1 Visa to enter the country, no I-130 is necessary.

[Marieke H 2,510]

This guide gives you a list of required (and recommended) documents for her AOS: 

As @Ayrton said, she will not need to submit an I-130 if she enters the country on a K-1 visa.

 

[Ed&Midori1031 330]

2 hours ago, Tracer6158 said:

Thanks....I need to file the I-130 as well, yes?

No, I-130 is not required since shes already there with you. 

[Tracer6158 27]

Thanks...seems I heard one or both of these documents are no longer required?

Affidavit of Support

Declaration of Self-Sufficiency

[Ayrton 965]

1 hour ago, Tracer6158 said:

Thanks...seems I heard one or both of these documents are no longer required?

Affidavit of Support

Declaration of Self-Sufficiency

864 and 944 are both required.

 

Judges are blocking the 944 in some states, but USCIS has always been able to revert the decision and request it again, including from those that filed while the judge decision was on. So it's better to file it anyway.

Edited January 1, 2021 by Ayrton

[SalishSea 17,833]

4 hours ago, Tracer6158 said:

Thanks...seems I heard one or both of these documents are no longer required?

Affidavit of Support

Declaration of Self-Sufficiency

Definitely required.  There is the little detail of public charge.....

[JFH 12,190]

8 hours ago, Ayrton said:

Since he's using a K1 Visa to enter the country, no I-130 is necessary.

Assuming they marry within 90 days of her arrival. The OP has stated they intend to marry very soon after the fiancé’s arrival but good to point out that just in case things don’t go to plan, they will need the I-130 if they don’t marry within 90 days. 

[Demise 1,287]

11 hours ago, Tracer6158 said:

My fiance's K1 interview is scheduled for Jan 5, 2021 and we want to get the rest of her paperwork rolling as soon as possible including the I-765.  However, we will likely be married on Feb 6.  After we are married, doesn't her 90 day K1 status "fall away" and she then becomes  an legal permanent resident?  And this means that she cannot receive an EAD card based on her K1 status, yes.  Which means we should be filing the I-765 under a different status?  The I-765 instructions notes that an EAD under K1 status only authorizes work during that first 90  day period given to get married.   Any help much appreciated.....fyi, I will be filling the I-485 with the I-765.

She would be filing for an EAD based upon her application for adjustment of status. The category code to use for this one is (c)(9)( ), there is no filing fee for this category.

 

Don't file for one based upon K-1 (a)(6)( ) status for two reasons:

1. USCIS charges the full price for this one

2. It can only be approved at most until her K-1 I-94 is valid. Meaning that it will either be denied because the K-1 already expired or in ideal scenario approved and valid for only a few days.

[Crazy Cat 41,884]

18 hours ago, Tracer6158 said:

After we are married, doesn't her 90 day K1 status "fall away" and she then becomes  an legal permanent resident?

No.  Once her I-94 expires after 90 days in the US, she will be out of status.  Once she submits a proper I-485, she will be granted "authorized stay" in the US while the I-485 is pending.  She will become a legal resident when the I-485 is approved.  Marriage, alone, confers no immigration benefit or status.

Edited January 1, 2021 by Lucky Cat