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

[Johnnie Oz 0]

As the OP of the topic of

"Work

authorization: I-94 Stamp or EAD Card do NOT seem to be

necessary!" that was moved to the General Family Based

Immigration Topics > Working & Traveling prior to getting a Green Card

forum, I thought I'd given a right to reply. But try as I might, I

seem to have been blocked from doing just that.

Some of you definitely know your immigration stuff but you are also a

tad smug and territorial. Please bear with me here.

Dr LHA wrote:

"If I have to read another post about how the SSA says you're allowed

to work I'll go spare.

Folks, the only thing that says you can work is the I-9. That is

governed by USCIS/DHS.

If you can't meet the requirements of the I-9 - you can't work. Simple as that.

If you don't have an EAD and can't present one within 90 days of being

employed, then you can't work."

Yes, I should have mentioned the I-9 form and apologize for not doing

so. My big bad.

Thank you for correcting me, which is what I asked for the readers to

do. By failing to mention this I gave the false impression that I

believed the SSN was ALL you needed to work.

However, if you read the fine print on the SSA link -

Click

here please you will see that in order to issue a SSN, the SSA

employee needs to see that you are authorized to work. So by this

logic - the fact that a foreign national with a K1 visa has a SSN is

already proof that you are authorized to work. But yes, I know

the I-9 form does not list the SS Card as acceptable so please read

on.

TracyTN made the snide remark about her 9-year old niece having a SSN

- as if that was what we are talking about here. This is about

immigration and not child labor. Very constructive, I see folks

chuckling at the time and some eating some major humble pie right

about now...

but TracyTN's advice to wait until your immigrant status is in the

SAVE database is good. I've heard that if it is not in SAVE yet, then

you should wait, ask them NOT to file the manual verification to DHS

(this will delay things) and come back a few days later. Do this until

it is in SAVE.

KitKat1 offers sounds comments, including showing how the State

Department is providing erroneous information or at the very least in

contradiction to the DHS I-9 form and SSA guidelines. For more on

these guidelines and why they have precedence, read on... nut I

believe that you will find the employer will be satisfied that a K1 is

authorize to work but NOT b/c of the SSN.

So Dr LHA is right, the employer still won't accept the SS Card as

proof of eligibility since it's not on the list (see below) - even

though a K1 coupled with a passport, an I-94, and visa all with the

same name as the SS Card should arguably be enough. Luckily, there is

no need to bicker here since all you need is the foreign passport, the

K1 visa and I-94 that verifies that you are indeed a K1.

Yes, the employer needs the I-9 form to be filed when anyone (alien or

citizen) starts a new job. When filing the I-9, your employer needs to

determine your identity and employment eligibility. In order to do so,

there are various options, see page 3 on the original form -

Click here please

One of which is on List A, item 4) "Unexpired foreign passport, with

I-551 stamp or attached Form I-94 indicating unexpired

employment authorization"

I am willing to bet a lot of $$$ that a I-94 with K1 status meets this

requirement - just like a H1B but significantly NOT a K3 (see below).

Remember that the SSA (and other government authorities) states

clearly the K1 Holders are "Aliens Work Authorized Without Specific

DHS Authorization." K1s are "...nonimmigrants, by alien class of

admission codes, who are authorized to work in the U.S. without

specific authorization from DHS. The person's I-94 will not have the

DHS employment authorization stamp and the alien will generally not

have an EAD." No JFK stamp, no EAD card.

However, K3s can NOT get the SSN without the EAD or JFK stamp, but K1s

can and thus do NOT need to worry about re-routing via JFK. K1s

fiancees (non-immigrant visa holders) are more likely to stay and file

for AOS (single entry, no IR-1/CR1 pending) than fellow non-immigrant

K3s. In this one way K1 fiancees are privileged over K3 spouses. Many

lawyers point out the seeming oddity here, but there is a logic to it.

K3s have multiple entry visas and are under less time pressure to AOS.

They may well be wrapping things up back home and just visiting their

spouse etc. K1s cannot do this and are in most cases going to stay in

the US.

Please correct me if I'm wrong and please re-read this since your

knee-jerk reaction will likely be to assume that I am.

If I'm wrong then it would seem that the requirements of the SSA

(government) to prove the alien's work authorization are not the same

as other parts of the government - remember you need to prove work

authorization as K1 (your visa, passport and I-94) to get the SS Card.

That would be madness.

More likely is that any employer calling DHS to verify if what I'm

saying is correct would get the answer that all you need is the

passport, visa and I-94 (without JFK stamp). Remember the SSA

phrasing: K1 are "Aliens Work Authorized Without Specific DHS

Authorization." Without specific = without an EAD or stamp.

[Dr_LHA 3]

I am willing to bet a lot of $$$ that a I-94 with K1 status meets this

requirement.

I'll take that bet. I'll quote from the I-9 Employers Handbook, which explains in more detail the List A item:

Unexpired foreign passport which:

* contains an unexpired stamp which reads "Processed for I-551. Temporary Evidence of Lawful Admission for permanent residence. Valid until Employment authorized;" or

* has attached to it a Form I-94 bearing the same name as the passport and containing an employment authorization stamp, 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.

The I-94 has to be specifically stamped "Employment Authorized", which will happen, for example, at the JFK POE. If you don't get this stamp, you're SOL.

If I'm wrong then it would seem that the requirements of the SSA

(government) to prove the alien's work authorization are not the same

as other parts of the government - remember you need to prove work

authorization as K1 (your visa, passport and I-94) to get the SS Card.

That would be madness.

Again, the SSA is a red herring here. The SSA does not have anything to do with employment authorisation. Only DHS can authorize employment, which is why SS cards have "Only authorized for work with DHS approval" on them.

Dude, I know you think you've had some revelation here, but trust me, this thread gets started every month on this forum. You're not the first to and you won't be the last.

Edited May 10, 2007 by Dr_LHA

[Johnnie Oz 0]

Unexpired foreign passport which:

* contains an unexpired stamp which reads "Processed for I-551. Temporary Evidence of Lawful Admission for permanent residence. Valid until Employment authorized;" or

* has attached to it a Form I-94 bearing the same name as the passport and containing an employment authorization stamp, 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.

The I-94 has to be specifically stamped "Employment Authorized", which will happen, for example, at the JFK POE. If you don't get this stamp, you're SOL.

Dude, I know you think you've had some revelation here, but trust me, this thread gets started every month on this forum. You're not the first to and you won't be the last.

Yep, I definitely thought/think it's revelation time.

I had not looked at the I-9 employers' handbook, thanks for that!

BUT - patience, patience

Look, I realize SSA does not authorize work. But this is all so counter-intuitive.

So what you're saying is the SSA thing is wrong when it refers to DHS, but they must have gotten this information from DHS?? AND this information distinguishes so clearly distinguishes between the K1 and K3!!

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

K3 is an alien who "Who Require(s) an EAD from DHS Authorizing Employment"

don't these then get different SS Cards, with different texts on them???? Why would they write on the K1 SS Card that it's only valid with a specific document when they've just determined that such a document is NOT necessary for the K1 to work??? The K1 can get a card asap, while the K3 has to have the EAD. This seems clear. So I read this to mean that the EAD stated on the K1's SS card is the I-94 without a stamp.

Otherwise they are more or less the same in this regard, i.e. you can't work without an EAD. Why does the SSA distinguish between them in this way???

But OK you're definitely correct in saying that the I-9 thing is trickier to get around. It is so explicit. But what if you persist in saying that the I-94 without a stamp is valid as EA IF you are a K1 (or an H1B, I should check forum on this)? Aren't there other indicators than the SSA guidelines that this is case?

All of this would mean that a K3 and K1 are more similar than they are made out to be. The only difference in this regard is that the K1 can get a SSN sooner?

Both can, and must, file for an EAD even though they are different with regards to needing DHS authorization? Then wait for it until their card is basically useless - due to the K1/K3 expiring. And then have to re-apply for a new temp EAD. Man. It just seems clear that the K1 doesn't need an EAD to get a SSN OR to work...

The I-9 form may be wrong, or open to interpretation.... a stretch I guess.

Guess my revelation will continue until we try this ourselves or I read about someone who tried just this...i think.

Thanks for your reply though.

[kitkat1 5]

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

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

Why would they write on the K1 SS Card that it's only valid with a specific document when they've just determined that such a document is NOT necessary for the K1 to work???

The SS card says it's only valid for work with a work authorization document because it IS necessary to have such a document to work.

So I read this to mean that the EAD stated on the K1's SS card is the I-94 without a stamp.

There is NO employment authorization document stated on the K1 SS card.

It just seems clear that the K1 doesn't need an EAD to get a SSN OR to work...

No. What is clear is that a K1 REQURES an EAD to work. Since 99% of employers also require a SSN (and much of the basics of setting up a new life require a SSN) most people get one as soon as they possibly can.

Why don't you ask your fiance to make a call to her HR department and ask? While many HR departments make mistakes on this (and put themselves at great risk) maybe you'll get lucky and speak to someone who knows their stuff.

Seriously, give it up.

[Dr_LHA 3]

You need to stop lumping K-1 and H-1B together. A H-1B is an employment visa, which is linked to a single employer. The employment authorisation is the I-797 approval notice you get from USCIS when H-1B is approved, you don't actually need a H-1B visa stamp (see e.g. here: http://www.oiss.yale.edu/department/h1.htm, the I-94 comes attached to the I-797 H-1B approval notice BTW). A H-1B is nothing at all like K-1 employment authorization, I know about these things, I had an H-1B for 6 years.

The I-9 form may be wrong

Yeah, if that's were your argument has gone then I think its time for you to admit defeat here. Sorry!

What it ultimately boils down to however is how your employer interprets the rules on the I-9 and the handbook. Hell some employers will employ you regardless of EAD/I-94, after all this is how illegal aliens get jobs. Rest assured, they are breaking the law however.

[Johnnie Oz 0]

You need to stop lumping K-1 and H-1B together. A H-1B is an employment visa, which is linked to a single employer. The employment authorisation is the I-797 approval notice you get from USCIS when H-1B is approved, you don't actually need a H-1B visa stamp (see e.g. here: http://www.oiss.yale.edu/department/h1.htm, the I-94 comes attached to the I-797 H-1B approval notice BTW). A H-1B is nothing at all like K-1 employment authorization, I know about these things, I had an H-1B for 6 years.

The I-9 form may be wrong

Yeah, if that's were your argument has gone then I think its time for you to admit defeat here. Sorry!

What it ultimately boils down to however is how your employer interprets the rules on the I-9 and the handbook. Hell some employers will employ you regardless of EAD/I-94, after all this is how illegal aliens get jobs. Rest assured, they are breaking the law however.

I realize that the H1B and K1 are way, way different BUT to the SSA they are similar (along with many others) in this one way. They do not need a EAD to show that they are work authorized, at least when it comes to getting a SSN. So one can be work authorized to get a SSN, and at the same not work authorized to work. Great.

And KitKat1, have you looked at the SSA page where it says K1 is an alien who can work "without specific DHS authorization". Before you tell folks to give it a rest and then correct them without a link, you should do just that.

Here's the link again, Please click here

compare K1 to K3 and please explain. And please provide me with the link that you got your quote from. After all you corrected me so....

cheers

And as I wrote in another post, the handbook is ancient. So that's where it might be "wrong", i.e. the form's admittedly ambiguous language could be interpreted my way in an updated one. May it be published soon.

Defeat? soon, but not just yet.

[kitkat1 5]

I'm not going to take the time to explain the difference between K1s and K3s. You are clearly capable of doing your own research and you are also clearly not particularly open to the experience of knowledge of people here. As I said before, the people here who are trying to help you (and are losing their patience) have been through this discussion many, many times before. And guess what? Your interpretation is NOT correct.

Again, why don't you call the HR department of any major corporation in the US and simply ask them?

Or maybe you will find an employer willing to break the law to hire you.

p.s. no one said you need an EAD to get a Social Security Card. But you can be sure that the SS card will say "not authorized to work with specific authorization"

[Dr_LHA 3]

How many more times?

The SSA does not authorise employment. DHS does.

It doesn't matter what it says on the SSA website. Only the I-9 and the I-9 handbook matter.

Every time you invoke the SSA to back up your argument you're just digging yourself into a bigger hole.

[Yodrak 7]

Johnnie Oz,

One of which is on List A, item 4) "Unexpired foreign passport, with

I-551 stamp or attached Form I-94 indicating unexpired

employment authorization"

I am willing to bet a lot of $$ that a I-94 with K1 status meets this

requirement - just like a H1B but significantly NOT a K3 (see below).

Remember that the SSA (and other government authorities) states

clearly the K1 Holders are "Aliens Work Authorized Without Specific

DHS Authorization." .....

A Form I-94 indicating unexpired employment authorization is an I-94 on which the CBP agent has placed a stamp that says 'employment authorized' and has written the expiration date. An I-94 that simply indicates K1 status but does not have the 'employment authorized' stamp is not an I-94 indicating unexpired employment authorization.

What the SSA states is with respect to SSA policy for issuing SS numbers and cards. The SSA does not require an I-94 indicating unexpired employment authorization for the issuance of SS numbers and card, SSA is willing to accept an I-94 that simply indicates unexpired K1 status. But what SSA is willing to accept for SSA purposes to not carry over to what an employer is required to have for employment puposes. SSA policy does not trump the law defining employment staus documentation by employers.

If I'm wrong then it would seem that the requirements of the SSA

(government) to prove the alien's work authorization are not the same

as other parts of the government

You are beginning to see the light.

Yodrak

Edited May 10, 2007 by Yodrak

[Johnnie Oz 0]

You are beginning to see the light.

Yodrak

Thanks Yodrak!

It's a new day and I'm a - starting afresh.

Too bad not everyone replies in such a courteous manner. I know I stuck my neck out and on occasion claimed that I had had a "revelation", that I was on to something new. But most of the time I was simply asking. And yes, I was wrong...

It really does seem that an employer filing an I-9 is instructed to verify the K1's employment eligibility etc in a way that he/she should not have to. Based on my reading of the spirit of the K1 - and the way it is referred to by some gov't agencies - an EAD or stamp on I-94 really should be redundant when proving employment eligibility.

BUT an employer can't know that and if the K1 tries to tell them otherwise, they better have a US lawyer right there to back that up. And due to this handbook, no lawyer (or member of this forum) will.

This seems to be the kind of case where one can be right in principle, but a legal snafu sabotages this very principle... you would think there's a loophole somewhere to prove the "real" rights of the K1. But I can't find one.

OK, so we are all in agreement: no one has tried and succeeded in doing what I've been talking about. In addition, the legalese is not on our side.

IF my fiance(e) and I go the K1 route, we'll try this out: nothing to lose as far as I can tell. Some say that even if an employer hires you, they would be breaking the law. To me, it seems more like a grey zone, esp if you have already married, and can show proof that you have also applied for the 1 year EAD - at that point you are still on K1.

That's their risk and I can hardly imagine that they would be fined for this...

The judge would have to say:

"if the defendant's alien employee had flown via JFK and gotten this stamp with no background check other than the he/she as K1 had already gone through, then all would be fine. Remember the stamp is something they are supposed to get as part of their class of admission. BUT if the K1 in question instead flew into LAX and received no stamp, the authorized K1 would not be authorized? Bizarre. I reluctantly order you to pay this fine due a nonsensical situation!"

Cheers!

[Johnnie Oz 0]

What the SSA states is with respect to SSA policy for issuing SS numbers and cards. The SSA does not require an I-94 indicating unexpired employment authorization for the issuance of SS numbers and card, SSA is willing to accept an I-94 that simply indicates unexpired K1 status. But what SSA is willing to accept for SSA purposes to not carry over to what an employer is required to have for employment puposes. SSA policy does not trump the law defining employment staus documentation by employers.

I am still curious as to why the SSA distinguishes between the K1 and K3 here. Will search for an answer on visajourney.com but would appreciate if anyone so inclined might explain or pass on a link.

THX!

[Kez/JWolf 6]

Oh Boy........

Kez

[Johnnie Oz 0]

Oh Boy........

Kez

[Johnnie Oz 0]

Folks, here's what I don't get:

Picture a K1 arriving at one POE, LAX

and a K3 at another, JFK

Now picture this:

K1 does NOT get a EA stamp on I-94! Even after asking and being persistent (prob not a good idea, but...)

K3 DOES! (didn't even ask for it and won't need it since the K3 is only visiting and plans to return to foreign home to work for a few more months)

Is this possible?

My understanding is that these two visas are fundamentally different when it comes to EA.

The K1 should not have to apply for it to work, but due to the current realities MUST in fact do so.

The K3 does have to apply for it (even to get a SSN, unlike the K1) but may unwittingly get one at the POE?

That would be so Twilight Zone....

Thank you

[Yodrak 7]

Johnnie Oz,

Better to search the INA. That's where the answers to immigration questions lie.

As the SSA (and others) see it, the INA gives K1s implicit employment authorization but does not give it to K3s. Perhaps because the K3 was not created as a companion to the K1 but because the K3 was created as a companion to the spousal immigrant visa. The new route to immigration for the spouses and stepchildren of USCs was created by Congress as a 'bandaid' to shorten the time to family re-unification because the existing route was taking a very long time, while fiance(e)s could get into the USA and begin family life in a relatively much shorter time. This was seen as 'unfair' and an undeserved penalty for being married, and so Congress decided to let alien spouses enter the USA as non-immigrants while their immigration cases were pending.

The USCIS opted to modify and adapt K1 paperwork for the newly created class of non-immigrant, and also use the 'K' designation, to expedite the implementation of the new law rather than start from scratch. But the USCIS can only implement the law that Congress pased, it cannot alter it.

Neither USCIS nor SSA can give K3s the same employment authorization status that K1s have just because the USCIS gave the status a 'K' designation.

Yodrak

I am still curious as to why the SSA distinguishes between the K1 and K3 here. Will search for an answer on visajourney.com .....

THX!

Edited May 10, 2007 by Yodrak