New I-9 Verification requirements

[Johnnie Oz 0]

Bear with me here, folks. This post contains some legalese but maybe we can resolve this once and for all!

As of Dec 26, 2007 a new I-9 employment eligibility verification form must be used by all employers. The language therein and that of the accompanying Handbook for Employers is causing some confusion on VJ re: the K1's ability to work.

(1) Some seem to think that the new rules eliminate the need to acquire a temp EAD at JFK or one of the land crossings. The changes to the wording relevant to this discussion hint at this.

Used to be: "unexpired foreign passport with an attached Form I–94 indicating unexpired employment authorization’’.

Now it's: "Unexpired foreign passport with an Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status if that status authorizes the alien to work for the employer."

It is easy to see why the new wording can be argued to make it easier for K1s. The I-94 no longer needs to show "unexpired employment authorization" (often interpreted as a need to have JFK style EA stamp). Instead, the wording is about the "alien's nonimmigrant status". As we know, different statuses (J1, K1, F1, H1-B etc) can authorize (during the validity of the status) an alien to work without restrictions to time or place, whereas some place restrictions on time or place (hours per week, specific employer). Such restrictions on usually listed on the I-94, and in the case of J1s and F1s also on separate documentation (DS-2019, I-20).

K1s have NO such limitations. According to the Code of Federal Regulations, "the following classes (inc. K1) 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" (my emphasis)

The key then is to prove this to an employer and this is where the trouble begins. The Code of Federal Regulations (as well as other gov't sites) tend to say that this authorization is only valid with a USCIS document. Some say this means that the i-766 EA Card is imperative, without that you are not authorized. But that would mean that a K1 cannot work until he/she marries, files for AOS and gets the EAD (can't apply for that before marriage)!!!

Surely that is not the case. Thus I would argue that the I-94 with K1 status (with or without the JFK stamp) is the only USCIS document needed till the I-94 expires. This was debated BEFORE the new I-9, to me it seems even clearer now. K1s can work with the help of an unexpired I-94. Period.

(2) HOWEVER, some argue that the new I-9 actually makes it impossible for k1s to work before the I-766 since the new language implies the need for a specific employer. Specifically, they point to the word combo "THE EMPLOYER" to mean that the alien has to be authorized to work specifically for the employer filling out the I-9.

I find that argument unconvincing, and think that one must read "THE EMPLOYER" in light of the alien's status, i.e. differently for various statuses. And not to mean that ONLY those with a specific employer listed on their I-94. But there is other language in both the federal register and code of federal regulations that refers to specific employers.

In particular, the language in Title 8, part A, § 274a.2 Verification of employment eligibility (v) (A) 5)

from the revised list of documents that an employer can accept

"In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, an unexpired foreign passport with an Arrival-Departure Record, Form I–94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I–94."

This wording is markedly different from that on the new I-9 (as detailed above). I guess an employer goes by the I-9 and Handbook but still, this is the Code (adminstrative law) to be used by the Executive Branch! No K1s welcome there?

Isn't it simply mind-boggling that USCIS and co have been unable to remove any doubts on this issue, esp after revamping their form and handbook? And that it takes simple folks like you and I to highlight this?

[rebeccajo 14]

Johnnie -

I just found this link on visapro.com

http://www.visapro.com/Immigration-Articles/?a=680&z=64

Here's what they have to say about the Column A requirements:

"Additionally, the most recent version of the Employment Authorization Document (Form I-766) was added to List A of the List of Acceptable Documents on the revised form. The revised list now includes:

U.S. passport (unexpired or expired);

Permanent Resident Card (Form I-551);

Unexpired foreign passport with a temporary I-551 stamp;

Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B);

Unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer. "

Also here's the link for Sec. 274a from Title 8 of the CFR. The specific subsection you want to read is 274a.2.

http://ecfr.gpoaccess.gov/cgi/t/text/text-....0.1.2.54.1.1.2

Edited January 10, 2008 by rebeccajo

[vbtbmrt 2]

well here is a link from ssa scroll down about half way it also states Aliens Work Authorized Without Specific DHS Authorization

https://secure.ssa.gov/apps10/poms.nsf/lnx/0100203500

[rebeccajo 14]

Social Security doesn't write employment law. Congress does.

Yes, the K1 is authorized to work. But the PROOF is an EAD. Social Security is permitted to give work authorized folks a number. But that number alone does not authorize the work!

Edited January 10, 2008 by rebeccajo

[CzechMate 16]

Social Security doesn't write employment law. Congress does.

Yes, the K1 is authorized to work. But the PROOF is an EAD. Social Security is permitted to give work authorized folks a number. But that number alone does not authorize the work!

Ok guys, here is a final word on this for what its worth from an employer (me) who just went through this with a K-1 (my wife).

SSA has nothing to do with Employment Authorization other than to issue a K-1 SSN.

K-1 are authorized to work for the 90 day period of their I-94. Beyond that they require an EAD even if they are in process of filing an AOS.

Most employers dont even understand the immigration process let alone the process for a K-1. For them you need just a photocopy of your K-1 Visa page, the ID Page and I-94 from the passport.

CM

[diadromous mermaid 36]

Bear with me here, folks. This post contains some legalese but maybe we can resolve this once and for all!

As of Dec 26, 2007 a new I-9 employment eligibility verification form must be used by all employers. The language therein and that of the accompanying Handbook for Employers is causing some confusion on VJ re: the K1's ability to work.

(1) Some seem to think that the new rules eliminate the need to acquire a temp EAD at JFK or one of the land crossings. The changes to the wording relevant to this discussion hint at this.

Used to be: "unexpired foreign passport with an attached Form I–94 indicating unexpired employment authorization’’.

Now it's: "Unexpired foreign passport with an Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status if that status authorizes the alien to work for the employer."

It is easy to see why the new wording can be argued to make it easier for K1s. The I-94 no longer needs to show "unexpired employment authorization" (often interpreted as a need to have JFK style EA stamp). Instead, the wording is about the "alien's nonimmigrant status". As we know, different statuses (J1, K1, F1, H1-B etc) can authorize (during the validity of the status) an alien to work without restrictions to time or place, whereas some place restrictions on time or place (hours per week, specific employer). Such restrictions on usually listed on the I-94, and in the case of J1s and F1s also on separate documentation (DS-2019, I-20).

K1s have NO such limitations. According to the Code of Federal Regulations, "the following classes (inc. K1) 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" (my emphasis)

The key then is to prove this to an employer and this is where the trouble begins. The Code of Federal Regulations (as well as other gov't sites) tend to say that this authorization is only valid with a USCIS document. Some say this means that the i-766 EA Card is imperative, without that you are not authorized. But that would mean that a K1 cannot work until he/she marries, files for AOS and gets the EAD (can't apply for that before marriage)!!!

Surely that is not the case. Thus I would argue that the I-94 with K1 status (with or without the JFK stamp) is the only USCIS document needed till the I-94 expires. This was debated BEFORE the new I-9, to me it seems even clearer now. K1s can work with the help of an unexpired I-94. Period.

(2) HOWEVER, some argue that the new I-9 actually makes it impossible for k1s to work before the I-766 since the new language implies the need for a specific employer. Specifically, they point to the word combo "THE EMPLOYER" to mean that the alien has to be authorized to work specifically for the employer filling out the I-9.

I find that argument unconvincing, and think that one must read "THE EMPLOYER" in light of the alien's status, i.e. differently for various statuses. And not to mean that ONLY those with a specific employer listed on their I-94. But there is other language in both the federal register and code of federal regulations that refers to specific employers.

In particular, the language in Title 8, part A, § 274a.2 Verification of employment eligibility (v) (A) 5)

from the revised list of documents that an employer can accept

"In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, an unexpired foreign passport with an Arrival-Departure Record, Form I–94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I–94."

This wording is markedly different from that on the new I-9 (as detailed above). I guess an employer goes by the I-9 and Handbook but still, this is the Code (adminstrative law) to be used by the Executive Branch! No K1s welcome there?

Isn't it simply mind-boggling that USCIS and co have been unable to remove any doubts on this issue, esp after revamping their form and handbook? And that it takes simple folks like you and I to highlight this?

See page 28, Question and answer #50 in this document. http://www.uscis.gov/files/nativedocuments/m-274.pdf

I recently hired someone who checked box three on Section 1 of the Form I-9, indicating that he is an alien. However, he informed me that he does not have an employment authorization, expiration date, which appears to be required by the form. What should I do?

Refugees and asylees, as well as some other classes of alien such as certain nationals of the Federated States of Micronesia, the Marshall Islands, and Palau, are authorized to work incident to status. Some such aliens may not possess an employment authorization document (I-766 or I-688B) issued by DHS, yet can still establish employment eligibility and identity by presenting other documentation, including a driver’s license and an unrestricted Social Security card or Form I-94 indicating their work-authorized status. Such individuals should write “N/A†in Section 1 next to the alien box. The refusal to hire work-authorized aliens because of their immigration status, or because they are unable to provide an expiration date on the Form I-9, may violate the anti-discrimination provision in the INA.

Edited January 10, 2008 by diadromous mermaid

[Texanadian 10]

I wish I knew about this when I crossed the border.

The ironic thing is that the I-94 says right on it "WARNING: A non-immigrant who accepts unauthorized employment is subject to deportation."

There is nothing on the I-94 that says anything about employment being allowed. And customs flat out told me "looks like you're gonna be sitting on the couch for awhile" When I asked about the 90 day EAD stamp. (They said they don't give those out)

Edited January 10, 2008 by Texanadian

[Johnnie Oz 0]

Unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer. "

OK, not sure where VisaPro gets this language from. The rest of the items on their list are verbatim versions of I-9, Federal Register etc wording. This specific employer part must be their interpretation, based on what exactly???

Also here's the link for Sec. 274a from Title 8 of the CFR. The specific subsection you want to read is 274a.2.

http://ecfr.gpoaccess.gov/cgi/t/text/text-....0.1.2.54.1.1.2

Thanks, but I guess you missed the fact that I both wrote about this subsection and linked to it in my OP. That's what I get for being so gosh, darn wordy

Again, the language here is different from the Visapro lingo: " ( 5 ) In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, an unexpired foreign passport with an Arrival-Departure Record, Form I–94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I–94."

I do not see any "restrictions or limitations identified" on my I-94. in fact, it says "employment authorized". period. But it is hard to argue that K1s are "authorized to work for a specific employer incident to status". But they are authorized to work...

maybe we really need the I-766. the language on USCIS sites also imply this:

"The specific categories that require an Employment Authorization Document include (but are not limited to) asylees and asylum seekers; refugees; students seeking particular types of employment; applicants to adjust to permanent residence status; people in or applying for temporary protected status; fiancés of American citizens; and dependents of foreign government officials. Please see Form I-765 (Application for Employment Authorization) for a complete list of the categories of people who must apply for an Employment Authorization Document to be able to work in the United States"

unless we can claim a K1 I-94 to be a temp EAD...

In the end, who knows how an employer will interpret this. They won't be reading VJ or Visapro, nor will they be contrasting Fed Reg with I-9 language. I assume...

B)

[Johnnie Oz 0]

thanks for all replies!

@diadromous mermaid

"See page 28, Question and answer #50 in this document. http://www.uscis.gov/files/nativedocuments/m-274.pdf

I recently hired someone who checked box three on Section 1 of the Form I-9, indicating that he is an alien. However, he informed me that he does not have an employment authorization, expiration date, which appears to be required by the form. What should I do?

Refugees and asylees, as well as some other classes of alien such as certain nationals of the Federated States of Micronesia, the Marshall Islands, and Palau, are authorized to work incident to status. Some such aliens may not possess an employment authorization document (I-766 or I-688B) issued by DHS, yet can still establish employment eligibility and identity by presenting other documentation, including a driver’s license and an unrestricted Social Security card or Form I-94 indicating their work-authorized status. Such individuals should write “N/A†in Section 1 next to the alien box. The refusal to hire work-authorized aliens because of their immigration status, or because they are unable to provide an expiration date on the Form I-9, may violate the anti-discrimination provision in the INA."

This would not seem to apply to K1s. Rather, it is for asylees and refugees who naturally do NOT have expiration dates on I-94s. And to individuals from certain U.S. territories.

Conversely, K1s always have expiration dates whether on the I-94 or on the I-766 EAD.

@CzechMate

"Ok guys, here is a final word on this for what its worth from an employer (me) who just went through this with a K-1 (my wife).

SSA has nothing to do with Employment Authorization other than to issue a K-1 SSN.

K-1 are authorized to work for the 90 day period of their I-94. Beyond that they require an EAD even if they are in process of filing an AOS.

Most employers dont even understand the immigration process let alone the process for a K-1. For them you need just a photocopy of your K-1 Visa page, the ID Page and I-94 from the passport"

Very interesting and thanks for sharing. I take it that you employed your own wife during the validity of the I-94? So you only had to convince yourself that this was true. So, how would we convince another employer should they put up a fight? Point to what exactly, i.e. how to show that k1 with i-94 is work authorized?

Reading the I-9 and the Employer Handbook, i understand the employee is in some position of strength. We choose what documents to show, we can insist that the documents (passport plus I-94) prove our eligibility, and we can point to risk of anti-discrimination. I know, not a great way start to a employee-employer relationship, but if push comes to shove...

we shall see.

Edited January 10, 2008 by Johnnie Oz

[*JG* 2]

I'm glad we are way past this point.

[Johnnie Oz 0]

I'm glad we are way past this point.

Looking forward to that day VERY much myself!!! As is my SO!

[diadromous mermaid 36]

thanks for all replies!

@diadromous mermaid

"See page 28, Question and answer #50 in this document. http://www.uscis.gov/files/nativedocuments/m-274.pdf

I recently hired someone who checked box three on Section 1 of the Form I-9, indicating that he is an alien. However, he informed me that he does not have an employment authorization, expiration date, which appears to be required by the form. What should I do?

Refugees and asylees, as well as some other classes of alien such as certain nationals of the Federated States of Micronesia, the Marshall Islands, and Palau, are authorized to work incident to status. Some such aliens may not possess an employment authorization document (I-766 or I-688B) issued by DHS, yet can still establish employment eligibility and identity by presenting other documentation, including a driver’s license and an unrestricted Social Security card or Form I-94 indicating their work-authorized status. Such individuals should write “N/A†in Section 1 next to the alien box. The refusal to hire work-authorized aliens because of their immigration status, or because they are unable to provide an expiration date on the Form I-9, may violate the anti-discrimination provision in the INA."

This would not seem to apply to K1s. Rather, it is for asylees and refugees who naturally do NOT have expiration dates on I-94s. And to individuals from certain U.S. territories.

Conversely, K1s always have expiration dates whether on the I-94 or on the I-766 EAD.

@CzechMate

"Ok guys, here is a final word on this for what its worth from an employer (me) who just went through this with a K-1 (my wife).

SSA has nothing to do with Employment Authorization other than to issue a K-1 SSN.

K-1 are authorized to work for the 90 day period of their I-94. Beyond that they require an EAD even if they are in process of filing an AOS.

Most employers dont even understand the immigration process let alone the process for a K-1. For them you need just a photocopy of your K-1 Visa page, the ID Page and I-94 from the passport"

Very interesting and thanks for sharing. I take it that you employed your own wife during the validity of the I-94? So you only had to convince yourself that this was true. So, how would we convince another employer should they put up a fight? Point to what exactly, i.e. how to show that k1 with i-94 is work authorized?

Reading the I-9 and the Employer Handbook, i understand the employee is in some position of strength. We choose what documents to show, we can insist that the documents (passport plus I-94) prove our eligibility, and we can point to risk of anti-discrimination. I know, not a great way start to a employee-employer relationship, but if push comes to shove...

we shall see.

I should have bolded the text in the excerpt I pasted that applies. Look above to see it.