david_dawei Posted July 15, 2006 Report Share Posted July 15, 2006 Here is a collection of documents establishing that a K1 is authorized to work incident to status; proof of that is an unexpired I-94 or EAD.This interpretation appears to have first surfaced by Social Security in a memo in 2000. Most seemed to have interpreted this exclusively in light of getting a SSN... but their language is clear that the I-94 is "PROOF" of work authorization [for getting a SSN and should by logical extension apply to the general concept of "PROOF" of employment eligibility as well.]SS appears to have consistently stated this while USCIS code of federal regulations has struggled through many revisions to produce inconsistency within the regulation as well as leaving contradictory interpretations to SS's position.Since the I-9 is based on the CFR, this has left employers also unclear as to the proper application. Particularly difficult is the comment:"if employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of [sic] the document(s) within three business days and the actual document(s) within ninety (90) days."It seems that the correct definition, although a minority view, should be based upon the Social Security memos and POMs. If one stays purely within the regulations, then one will not get to the correct interpretation.More recently, SS and CIS have come together and evidence agreement on the SS position of the 2000 memo...As well, an interesting read is the RECOMMENDATION FROM THE CIS OMBUDSMAN TO THE DIRECTOR, USCIS, which really deserves it's own write-up. It takes a CFR-centric view and makes some very good recommendations about EAD. But an interesting footnote states their opinion that "there appears to be no rationale for the EAD requirement for K-1s". ---------------Documents cited:---------------1) The Social Security memo Evidence of Employment Authorization?-- 11/1/2000See: http://www.k1k3.com/stuff/SSNMemo.pdf2) RM 00203.500 Employment Authorization for NonimmigrantsSee: https://s044a90.ssa.gov/apps10/poms.nsf/lnx...opendocument#c13) List of Documents Establishing Lawful Alien Status for an SSN CardSee: https://s044a90.ssa.gov/apps10/poms.nsf/lnx...33;opendocument4) MINUTES OF THE SOCIAL SECURITY ADMINISTRATION AND CIS AILA LIAISON MEETING ON SSA-RELATED ISSUES -- May 8, 2006See: http://www.tomesparza.com/documents/minssocialcis.pdf5) RECOMMENDATION FROM THE CIS OMBUDSMAN TO THE DIRECTOR, USCIS -- March 20, 2006See: http://www.dhs.gov/interweb/assetlibrary/C...AD_03-20-06.pdf6) The Meaning of 8 CFR 274a.12(a) as it Relates to Refugee and Asylee Authorization for Employment. -- July 17, 2002See: http://www.uscis.gov/graphics/lawsregs/han...ylees031003.pdf7) Employment Authorization of Aliens Granted Asylum -- March 10, 2003See: http://www.uscis.gov/graphics/lawsregs/han...ylees031003.pdf8) British ExPat Thread: K1 and EADSee: http://britishexpats.com/forum/showthread.php?t=313634-------------------------------------Excerpts and comments from the Documents:--------------------------------------1) The Social Security memo Evidence of Employment Authorization-- 11/1/2000- A nonimmigrant alien in K1 alien status is authorized to work based on that status and is no longer required to show employment authorization document (EAD) as proof of employment authorization when applying for a social security card?- Accept as proof of employment authorization an unexpired I-94 showing the alien is admitted as a K1 for a 90 day period.- Some I-94s are issued to K1s are stamped or annotated Employment Authorized, and some are not. Either way, an I-94 is proof a K1 alien is authorized to work.See: http://www.k1k3.com/stuff/SSNMemo.pdf2) RM 00203.500 Employment Authorization for NonimmigrantsK1 visa holders are aliens in a Class of admission listed as: Aliens Work Authorized Without Specific DHS AuthorizationThis group is stated as those, 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.Evidence of this work authorization is mentioned as: Required evidence for employment authorization is either a Form I-94, Arrival/Departure Record, showing a class of admission that indicates the person can work without specific DHS authorization or an employment authorization document (EAD).The phrase: "Showing a class of admission that indicates the person can work without specific DHS authorization" has been established above as the class that K1s are in.Thus, K1s are work authorized incident to status and proof of that work authorization is either a [unexpired] I-94 OR an EAD.See: https://s044a90.ssa.gov/apps10/poms.nsf/lnx...opendocument#c13) List of Documents Establishing Lawful Alien Status for an SSN Card"When an alien listed below has an (*) next to the description, he/she may work only when INS grants employment authorization and issues an EAD."Note that K1s in the list have no (*) by their class, although K2,K3,K4 do have an (*).See: https://s044a90.ssa.gov/apps10/poms.nsf/lnx...33;opendocument4) MINUTES OF THE SOCIAL SECURITY ADMINISTRATION AND CISAILA LIAISON MEETING ON SSA-RELATED ISSUES -- May 8, 2006"Eliminating need for EAD for noncitizens authorized to work incident to status under 8 CFR ?74a.12(a). In addition to asylees, which have been the subject of various instructional memos and guidance from CIS to SSA, there are other foreign nationals authorized to be employed incident to the status they hold in the U.S. Can SSA work with CIS to get updated guidance to SSA field offices confirming that all L-2 dependents, E-2 dependents, E-1 dependents, and K-1 fiancees are authorized to work without presentation of an EAD card, as stated in CIS regulations, and thus should likewise be able to have SSN issued upon presentation of their status" -- Note they claim CIS regulations do call for K1s as not needing EAD..."CIS agrees that spouses of Es and Ls are authorized to work incident to status and need not present EADs to demonstrate work authorization or to obtain an SSN and has so advised SSA. Since receiving CIS guidance, SSA has been reluctant to assign SSNs to E and L spouses who lack EADs because of difficulties in differentiating a spouse, who is work-authorized incident to status, from a child, who is not. (The I-94 does not identify whether the derivative is a spouse or a child). SSA will accept a marriage certificate, with appropriate translation, as proof that an applicant has been admitted as an E or L spouse. SSA will change its POMS guidance accordingly and will no longer require an E or L spouse to present an EAD to apply for an SSN. CIS and SSA also agree that K-1 fiancees do not require an EAD to evidence work authorization or to apply for an SSN, and POMS will be revised accordingly. Current guidance (to be revised) is at POMS RM00203.600"See: http://www.tomesparza.com/documents/minssocialcis.pdfSee: https://s044a90.ssa.gov/apps10/poms.nsf/lnx...opendocument#c15) RECOMMENDATION FROM THE CIS OMBUDSMAN TO THE DIRECTOR, USCIS -- March 20, 2006Lots of interesting recommendations on EAD... but it's also clear that CIS OMBUDSUMAN don't follow the SS position and instead is CFR-centric... but they do point out [in footnotes] that the asylee memo states asylees don't need any EAD due to they are "work authorized incident to status"...And in another footnote they make the logical extension that "the regulations require that the foreign national apply for an EAD. However, this is not the case with asylees, and there would appear to be no rationale for the EAD requirement for K-1s".See: http://www.dhs.gov/interweb/assetlibrary/C...AD_03-20-06.pdf6) The Meaning of 8 CFR 274a.12(a) as it Relates to Refugee and Asylee Authorization for Employment. -- July 17, 2002In summary:- aliens listed under 274a.12(a) are "employement authorized incident to status" without restriction... and asyleees are one of the classes (AS ARE K1)...- That confusion is based on the section stating "as evidenced by an employment authorization document issued by the service"... and that the alien asylee, among others (IN THE GROUP, ERGO, K1) must apply to the service for a document evidencing such employment".- A distinct exists between an alien having employment authorization vs an alien having evidence of employment authorization... and one authorized to work may obtain evidence/proof, of which the EAD is one way, and is preferred since it is also an valid ID... but lack of EAD is not lack of employment authorization.See: http://www.uscis.gov/graphics/lawsregs/han...ylees031003.pdf7) Employment Authorization of Aliens Granted Asylum -- March 10, 2003Citing 8 C.F.R. 274a.12(a)(5) : Aliens authorized employment 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) through (a)(8) or (a)(10) through (1)(13) of this section, and who seeks to be employed in the United States, must apply to the Service for a document evidencing such employment authorization.The phrase in 8 C.F.R. 274a.12(a)(5) that lists asylees as employment authorized, "as evidenced by an employment authorization document issued by the Service," has often been the source of confusion or misunderstanding, and is pointed to as further evidence that an asylee must apply for employment authorization.Two options emerge:A ) The phrase could be viewed as a condition of employment authorization.B ) The phrase could be interpreted as referring to the document of choice that the INS will issue to asylees, rather than a condition of employment authorization."Given that in paragraph (a) of 274a.12, asylees are stated as being employment authorized without condition as a result of obtaining their status, espousing the first interpretation would read this language out of the regulations. ""This point is made clearer when applying the second interpretation to a class of aliens that is not subject to the EAD process. ""Under the plain language of the regulations, then, failing to utilize the EAD application process results in nothing more than the asylee being employment authorized without an INS-issued EAD. Despite this plain language reading of the regulations, some statements made by INS would seem to support the first and more restrictive interpretation of the EAD language in 8 C.F.R. ?274a.12(a)(5). These statements, however, are flawed and, therefore, have little, if any, interpretive value."Citing the 1994 final rule amending 8 C.F.R. 208.20:"The proposed amendments to section 208.20 are designed to ensure that asylees receive their EAD promptly upon application. They do not create new requirements or obstacles for asylees seeking authorization to work. Asylees are among the categories of persons who are eligible for employment incident to their status but must nevertheless apply for an employment authorization document.""Upon analysis of the italicized portions of this paragraph, it is evident that a number of misstatements were made"- Employment authorization is incident to status, so asylees will not be separately seeking work authorization from the INS; The regulations at 8 C.F.R. ?274a.12(a)(5) do place a requirement on asylees, but that requirement has to do with asylees seeking evidence of employment authorization rather than employment authorization itself.- "[a]sylees are among the categories of persons who are eligible for employment incident to their status but must nevertheless apply for an employment authorization document's also incorrect. Section 274a.12(a)(5) lists asylees not as aliens who are eligible for employment incident to their status, but, instead, as aliens who are authorized for employment incident to their status.- "ince authorization for employment is a discretionary immigrant benefit's likewise incorrect. Because of the mandatory language in the statute, the Attorney General has no discretion to withhold employment authorization once an individual is granted asylum.""By policy directive, asylees are provided with the Form I-94 containing an endorsement of their work-authorized asylee status which, therefore, constitutes an endorsement of their work authorized status."[ It should be noted that each section of 8 C.F.R. ?274a.12(a) contains this same quoted language ("as evidenced by an employment authorization document issued by the Service,"), and thus the interpretation of this is not exclusive to asylees; K1s are contained in 8 C.F.R. 274a.12(a)(6) ]See: http://www.uscis.gov/graphics/lawsregs/han...ylees031003.pdf8) British ExPat Thread: K1 and EADCitation to the US Code of Federal Regulations would require a depthstep-by-step analysis in order to provide explanation of how all of the provisions implicated by this question interrelate.In general, however, the progression is as follows:1. K-1 classification may last no longer than 90 days.2. K-1 classification is for fiance(e)s of US citizens only.3. As soon as a K-1 alien marries, he/she is no longer a fiance(e).4. K-1 aliens are work authorized incident to status, per 8 CFR 274a.12(a)(6).5. K-1 work authorization may last no longer than the status lasts, whether the documentation issued to the K-1 alien has expired or not.6. An employment authorization document is required under 274a.12(a)(6) to K-1 aliens, although INS General Counsel takes the position that 274a.12(a) aliens (unlike 274a.12 aliens, for example) are work authorized incident to status (i.e upon INS-issued proof of status). However, the public has not been formally advised of this interpretation.7. Some K-1 aliens who are unaware of this interpretation apply for EAD'sat INS Service Centers, where the processing period of 90 days essentially eviscerates the work authorization and the document may arrive after the fiance(s)'s status has already changed to spouse. Some K-1 aliens are issued EAD's at INS field offices. Some are issued Forms I-94 stamped "employment authorized." This varies from area to area within the US.8. An EAD is automatically invalidated if the status which entitled thealien to the employment authorization ceases, whether or not the EAD has expired.[source of this was mentioned as possibly USCIS Office of Business Liason, but I could not verify that]See: http://britishexpats.com/forum/showthread.php?t=313634 Link to comment
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