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

[Johnnie Oz 0]

If I may: here's some less well-known ( I think, having read a lot on visajourney.com) information regarding permission to work for K1 visa holders - plus bonus information on K3 visa holders and various others.

DISCLAIMER: This is the route my fiance(e) and I are now planning to go down, but as yet this is only based on my take on the law. So take it with a grain of salt and please correct me where I'm wrong.

OK,

There seems to a misunderstanding that K1 visa holders wanting to work need to either get:

1. a stamp on your I-94 at the POE (making some people do their best to fly to JFK even if they are moving to Idaho)

OR

2. getting their hands on the temp EAD in the form of a laminated card, the I-688B I think

While it definitely does no harm to have either, and may help convince an uninformed bureaucrat at the Social Security Administration that you are authorized, I believe that you do NOT need either.

I base this on my understanding of the conditions under which a K1 visa holder is admitted: that the 90 day work authorization is automatically incorporated in the class of admission of K1. All you need to prove this to the SSA is the I-94 attached to your passport with the K1 visa page, all of which serve to prove that you are K1. Thus e.g. the JFK-type stamp would appear to be completely superfluous - I'm sure this would be a relief to folks flying directly into a West Coast POE, i.e. people like us.

The Proof is the (bureaucratic) Pudding: click here, SSA Work Authorization Guidelines

As you will see, a K1 holder (along with various others like the old H1-B - yes, K1 and H1B are similar here) is classified as an "Alien Work Authorized Without Specific DHS Authorization".

A K1 can thus apply for a Social Security Number, and once you have it, you can work.

However, on the SSA page you will also see that for a K3 holder this is NOT true! For this class of admission you MUST have DHS authorization, i.e. a JFK-type stamp or the EAD card. Thus as many have noted, the spouse is in some ways at a disadvantage vis-a-vis the fiance(e). But with a multiple entry visa etc, the K3 spouse has less incentive to begin immigrating (AOS) than the single-entry K1 who needs an AP or to get through AOS before being able to exit the US and return without hassles.

The K3 can be used as a commuting visa with the potential of immigrating (AOS) at your leisure. Some spouses have it to visit their loved ones while wrapping up business, work, school or whatever abroad.

The K1 (unless you get cold feet or want to leave and then re-apply) is more likely to stay in the US. And so the need to work is seen as more important, I guess that's the logic behind it. I digress...

Yes, this seems too simple, but it was how I originally understood the K1, i.e. that you could work right off the bat.

But then I was led to believe that you would get stuck without the possibility of working UNLESS you went via JFK or got unlikely rapid processing of the EAD by your USCIS local office or Service Center. To compound this Kafkaesque scenario, by the time you got the EAD, it would be useless when the K1 expired and you have to re-apply for another temp EAD etc. A friend of mine went through this as have others on this forum. Meanwhile, if I'm right you could have been working legally.

So while SSA bureaucrats - or employers for that matter - may not know all of the above and throw you for a loop or three, you are entirely within your rights as K1 to insist on a SSN asap. If you then marry and file the AOS concurrently with an extension/new EAD (this one valid for a year I understand)

you may well never be unauthorized to work - 90 day work authorization, new temp EAD, and the PR/Green Card status. Naturally short period between the 90 day K1 permit and the new temp EAD is possible due to processing delays.

So, has anyone gone through this process along the lines above?

After much reading, esp. on this excellent forum, and talking to friends who have gone down both the K1 and DCF (ah, the time before the Adam Walsh Act ), my fiance(e) and I are close to trying this.

It simply seems the quickest, most painless way to be reunited AND be able to work asap. In addition, we will be together for the AOS process and I find this preferable to just one of us being in the US for an indeterminate time if we pursue the CR-1/IR-1 route.

Thanks for reading. All comments welcome. And good luck in your immigration efforts.

[TracyTN 237]

Since when has merely holding a social security number guaranteed the right to work?

My 9 year old niece has a social security card - does that mean my sister should ship her off to Wal Mart tout de suite to start earning some extra $ for the family? I doubt it. Wal mart would quickly conclude that, as a child, she cannot legally work.

And yes - as a K1 visa holder, you CAN demand an SSN immediately from the SSA -- on principle. But how exactly are they going to issue you one if you're not in the SAVE system yet? Nice concept, but in reality, it doesn't work out so well.

I don't know how or where you got the impression that K1s could work immediately, but you ARE correct in one scenario: 90 day work authorization from JFK stamp, quick marriage and AOS/new temp EAD, and the PR/Green Card status. But as you stated, that only works if the AOS based EAD comes through while the JFK stamp is still valid.

That's really the only way to do it legally, I'm afraid.

Edited May 9, 2007 by TracyTN

[wpaulino0613 0]

Love your post... very informational for me... Thanks!

[kitkat1 5]

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)?

[Kez/JWolf 6]

Yes a K1 is work authorized BUT....... for an employer to employ you, you need to complete a I-9 form on that form it lists the items that are acceptable as proof of work authorization.... and a K1 is not listed... so you still need either the stamp or the EAD to be able to comply with the I-9....

So there is only one way to do this and that is the right way....

Kez

[*JG* 2]

And all I want to add on this topic is that it all sounds good in theory. Our experience was so different then anything I've read about. No social security number without a work authorization or green card. Green card came first.

[Dr_LHA 3]

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.

[Johnnie Oz 0]

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.

Started a new topic since I couldn't post - but let's try replying the normal way. In addition, please see this topic. It appears to confirm my point, the one reinforced below. Please click here

Thanks

OK, 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.

[kitkat1 5]

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

Johnnie Oz, this issue has been discussed, debated, and researched again and again. You are not the first poster to be confused by this and that's why knowledgeable are trying to clarify for you.

Bottom line - the only thing you really need to understand - an I-94 with K1 status does NOT meet the requirement. There is no question that you can get a SS card, but it will clearly state that you are not authorized to work without authorization (or something to that effect).

The REQUIRED authorization comes in the form of an Employment Authorization document that you either get at a POE (temporary) or you apply for. (The state department site makes that very clear and there are no errors there).

You may find yourself an employer who doesn't know the rules or who is willing to take the risk. But that does not mean it's legal and it could present problems at AOS. If you know where you are planning to work when you arrive or if you have a friend in HR in the US, you could call and ask them exactly what they require from a K1 visa holder and perhaps that will convince you.

[Dr_LHA 3]

Every month someone comes along and tries to "logic" not needing EAD, usually quoting SSA regs.

You took my hint about the I-9, now read the I-9.

Can you fulfil the requirements on page 3 of the I-9? Especially look at "List A" if you don't have any of the items on that list, you can't work.

Forget what the SSA says, they do not have the authority to say who can work and who cannot work. Only DHS can approve someone to work.

Edited May 10, 2007 by Dr_LHA

[Dr_LHA 3]

You may find yourself an employer who doesn't know the rules or who is willing to take the risk. But that does not mean it's legal

Correct an employer would be breaking the law by employing you without the necessary documents to prove you are employment authorised.

and it could present problems at AOS.

No - it won't. USCIS forgives illegal work if you're married to a US Citizen.

[mr_s_p 1]

To add to the other posts...

I have researched the "I-9" and the "Handbook for Employers" (M-274)

Here's the URL for the I-9: http://www.uscis.gov/files/form/i-9.pdf

and for the Handbook for Employers: http://www.uscis.gov/files/nativedocuments/m-274.pdf

The explanation in Part 8 of the Handbook for Employers, particularly List A:

"Unexpired foreign passport which: ... has attached to it a Form I-94 bearing the same name as the passport and containing an employment authorization stamp..."

This is pretty much cut and dried... no room for ambiguity here....

[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

[kitkat1 5]

Johnnie Oz,

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.

Yodrak

Here's hoping YOU can get through to him . . .

[Johnnie Oz 0]

Here's hoping YOU can get through to him . . .

What is up with you people? I am trying to become wiser...and this is what I get?

KitKat1

Don't bother backing up your own quotes with a link, ie. the one where you claimed that determining K1 's work authorization requires SPECIFIC DHS authorization. That would be asking too much, huh? I provided a link to where this is DEFINITELY stated to NOT be the case as opposed to the K3 - this is why I pointed out the seeming difference between them, a difference that actually makes no difference (and thus no sense). But I know the new rules are I can't refer to the SSA's terminology due to some alleged hole I'm in, so I'll refrain from now on.

BTW, I'm not the one claiming that the wording on the SS Card is important. It's not since the employer is not asking to see this for I-9 verification of EA but rather the documents on those lists. And anyway whatever it says, I argued (past tense) that this wording was referring to the I-94 with K1 (no stamp) as the required proof - that this I-94 for K1s only IS one and the same as a temp 90 day EAD, the latter only confirms the former and should be redundant. And you are saying that it is AND should be but in reality it's not due to bureaucratic nonsense/circular logic?

Thus only the JFK stamp or the EA Card will convince an employer of the de jure status you in fact do have. That in a nutshell is what's so frustrating, you already have the EA with the K1 but you don't!

here's a(nother) sincere plea for

My fiance(e) and I are trying to determine which route to go. Because the foreign national is currently here, we have various options inc. AOS after marriage. There was no intent to marry upon entering the US. The K1 looked good, but the immigrant will seemingly get stuck in this non-working trap -even if the visa is set up to avoid this.

Until I did any research or talked to anyone, I just read the K1 rules and thought wow, work right away etc. Then I heard nay-sayers, so I checked the language of various USCIS documents etc. This since it didn't make sense that the K1 should be basically be prevented from working unless they fly throught JFK. That is beyond arbitrary and plain ridiculous.

And so is the notion - though it may true - that it would be the same for the employer to hire a work authorized K1 - who has a bona fide SS Card that matches the passport, visa and I-94 info - as it would be to hire an illegal alien. This b/c the K1 does not have the card that they cannot get until after the wedding, and even then there will be a delay rendering the EAD useless? Why is this visa even automatically work authorized in the first place?

Questions, questions....

Either change the terms of the visa, making it more like a K3

OR

Instruct Inspection Officers EVERYWHERE to issue K1s with that hallowed stamp, what's the big deal?

OR

Change that ancient handbook already, the form has been updated and perhaps with different wording I'll be right.

The language gave me some hope until I saw that handbook, which is explicit. And even if it's outdated, it's the one they go by. Fine. No problem conceding this.

Finally, does anyone even agree with me that it would make sense - due to the nature of the K1 and its stated conditions - if the non-requirement to have a EAD to prove employment eligibility applied across the board (all gov't documents, agencies) for the K1 holder? That the same documents (Passport, K1 Visa, I-94 without stamp) needed to do everything else, inc instances when you have to prove EA before proceeding (like with that nine digit number), would be enough to actually convince an employer????

Thanks for your patience - I read that it was wearing thin. We appreciate your help and the exchange.

Amerika, The Wo(man) Who Disappeared....