The future of EAD and K1

[david_dawei]

Seems that what the Ombudsman recommended in it's March 2006 writeup is all but being turned down. In the case of EAD, USCIS appears to want to remove the EAD from K1 until they adjust for status, thus being consistent to a K3... (the opposite of what OMB was recommending)

 

 

RECOMMENDATION FROM THE CIS OMBUDSMAN TO THE DIRECTOR, USCIS (March 2006)

http://www.dhs.gov/xlibrary/assets/CISOmbu...AD_03-20-06.pdf

 

 

USCIS Response to Recommendations: (June 2006)

http://www.dhs.gov/xlibrary/assets/CISOmbu...se-06-20-06.pdf

 

Third, the Ombudsman reammends that USCIS amend the regulations such that K-1

noaimmigrants are not subject to breakar in employment authorization.

 

Pusuant to 8 C.F.R. 5 214(d) and 8 C.F,R. ?274a.l2(a)(6), USCIS currently provides employment authorization to K-1 nonimmigrants for duration of status of up to 90 days, upon approval of an application fbr employment authorization (Form 1,765). Such employment authorization is disaetioniuy in nature and is not mandated by statute. Employment authorization for K-1 nonimmigrants is not grsnted automatically incident to status, and once obtained, the employment authorization cannot be extended beyond the 90-dsy duration of status. Accordingly, K-1 nonimmigrslnts seeking adjustment of status to permanent residence as a spouse of a U.S. citizen must submit a separate application for employment authorization once they file for adjustment.

 

USCIS does not consider automatic employment authorization for K-1 nonimmigrants to be consistent with the intent of the underlying benefit. The K-1 nonimmigrant visa is designed to enable an alien with a bona fide intention to marry a U. S. citizen to enter the United States and enter into a valid marriage in the United States within 90 days after the alien's arrival. (See 8 C.F.R. ?21qd)). Thus, the purpose of the K-1 visa is to provide a hily-baaed benefit in facilitating marriage between a foreign national and a U.S. citizen. Its purpose is not to provide an avenue for employment within the United States. This interpretation is supported by the short 90 day duration of the K-1 nonimmigtant visa with no opportunity for an extension. By contrast, granting employment authorization automatically to K-1 aliens appears to conflict with the temporary, nonimmigrant and fiunily-based nature of the K-1 visa.

 

USCIS instead plans to propose to eliminate employment eligibility for K-1 nonimmigrants, in order to be more consistent with the overall intent of the K- 1 visa.

 

 

BTW: Here's the history of OMB recommendations and USCIS responses: http://www.dhs.gov/ximgtn/programs/editorial_0769.shtm

Edited November 25, 2006 by DavidZixuan (see edit history)

[Randy W]

The Ombudsman's recommendation was primarily concerned with breaks and overlaps in the periods of employment eligibility. In particular, the K-1 authorization is good for 90 days, but the EAD (I-785) which is filed for with the AOS (I-485) is rarely approved by the 90 day expiration. So, there is a gap between the 90 day expiration and the time the EAD is received. And when a new EAD card is applied for, it is dated as of the date of approval, rather than on the date of expiration of the previous one.

 

That 90 day period of K-1 employment authorization is pretty useless for employment, since most employers won't hire someone with a built-in expiration date. Most of us have used that window to obtain a social security card, however.

 

So one way to eliminate that gap is to simply eliminate the 90 day employment authorization window. This, unfortunately, would have the side effect of delaying the SS application, which, in turn, would put a pretty severe crimp in our SO's driver's license (in some states), bank account, and I'm sure a lot of other financial matters which require an SSN. All of this, of course, leads into the AOS.

[david_dawei]

The Ombudsman's recommendation was primarily concerned with breaks and overlaps in the periods of employment eligibility. In particular, the K-1 authorization is good for 90 days, but the EAD (I-785) which is filed for with the AOS (I-485) is rarely approved by the 90 day expiration. So, there is a gap between the 90 day expiration and the time the EAD is received. And when a new EAD card is applied for, it is dated as of the date of approval, rather than on the date of expiration of the previous one.

 

That 90 day period of K-1 employment authorization is pretty useless for employment, since most employers won't hire someone with a built-in expiration date. Most of us have used that window to obtain a social security card, however.

 

So one way to eliminate that gap is to simply eliminate the 90 day employment authorization window. This, unfortunately, would have the side effect of delaying the SS application, which, in turn, would put a pretty severe crimp in our SO's driver's license (in some states), bank account, and I'm sure a lot of other financial matters which require an SSN. All of this, of course, leads into the AOS.

It's not clear if this change would prompt Social Security to reverse their trend toward issuing a SSN number based on an unexpired I-94 for a K1. It seems these two departments have been going in different interpretations or directions for some time.

 

---

 

Here is another link, from the USCIS Press Room... that locally produced EADs stopped being issued on Sept.1 , 2006 and are being issued centrally instead.

 

USCIS REMINDS CUSTOMERS OF FILING CHANGE FOR EMPLOYMENT AUTHORIZATION DOCUMENTS

Local Offices To Stop Processing and Producing EADs

http://www.uscis.gov/files/pressrelease/EA...gCh072806PN.pdf

[Guest Duke]

The Ombudsman's recommendation was primarily concerned with breaks and overlaps in the periods of employment eligibility. In particular, the K-1 authorization is good for 90 days, but the EAD (I-785) which is filed for with the AOS (I-485) is rarely approved by the 90 day expiration. So, there is a gap between the 90 day expiration and the time the EAD is received. And when a new EAD card is applied for, it is dated as of the date of approval, rather than on the date of expiration of the previous one.

 

That 90 day period of K-1 employment authorization is pretty useless for employment, since most employers won't hire someone with a built-in expiration date. Most of us have used that window to obtain a social security card, however.

 

So one way to eliminate that gap is to simply eliminate the 90 day employment authorization window. This, unfortunately, would have the side effect of delaying the SS application, which, in turn, would put a pretty severe crimp in our SO's driver's license (in some states), bank account, and I'm sure a lot of other financial matters which require an SSN. All of this, of course, leads into the AOS.

It's not clear if this change would prompt Social Security to reverse their trend toward issuing a SSN number based on an unexpired I-94 for a K1. It seems these two departments have been going in different interpretations or directions for some time.

 

---

 

Here is another link, from the USCIS Press Room... that locally produced EADs stopped being issued on Sept.1 , 2006 and are being issued centrally instead.

 

USCIS REMINDS CUSTOMERS OF FILING CHANGE FOR EMPLOYMENT AUTHORIZATION DOCUMENTS

Local Offices To Stop Processing and Producing EADs

http://www.uscis.gov/files/pressrelease/EA...gCh072806PN.pdf

 

As a data point, I can confirm my EAD filed through Chicago PO Box was transfered to CSC by NBC last week. I wonder if it is to be married up with my I-130?

[david_dawei]

As a data point, I can confirm my EAD filed through Chicago PO Box was transfered to CSC by NBC last week. I wonder if it is to be married up with my I-130?

I don't think so... I think your I-130 was filed for your [K3] wife.. goes to the lockbox, then NBC and eventually to a local district [Field] office where the interview will occur. The EAD is sent to CSC. Does this sound correct?

[Randy W]

The Ombudsman's recommendation was primarily concerned with breaks and overlaps in the periods of employment eligibility. In particular, the K-1 authorization is good for 90 days, but the EAD (I-785) which is filed for with the AOS (I-485) is rarely approved by the 90 day expiration. So, there is a gap between the 90 day expiration and the time the EAD is received. And when a new EAD card is applied for, it is dated as of the date of approval, rather than on the date of expiration of the previous one.

 

That 90 day period of K-1 employment authorization is pretty useless for employment, since most employers won't hire someone with a built-in expiration date. Most of us have used that window to obtain a social security card, however.

 

So one way to eliminate that gap is to simply eliminate the 90 day employment authorization window. This, unfortunately, would have the side effect of delaying the SS application, which, in turn, would put a pretty severe crimp in our SO's driver's license (in some states), bank account, and I'm sure a lot of other financial matters which require an SSN. All of this, of course, leads into the AOS.

It's not clear if this change would prompt Social Security to reverse their trend toward issuing a SSN number based on an unexpired I-94 for a K1. It seems these two departments have been going in different interpretations or directions for some time.

 

---

 

Here is another link, from the USCIS Press Room... that locally produced EADs stopped being issued on Sept.1 , 2006 and are being issued centrally instead.

 

USCIS REMINDS CUSTOMERS OF FILING CHANGE FOR EMPLOYMENT AUTHORIZATION DOCUMENTS

Local Offices To Stop Processing and Producing EADs

http://www.uscis.gov/files/pressrelease/EA...gCh072806PN.pdf

 

But the concern for most of us is the SSN's - the K-1 employment authorization is useless unless the window is extended to close the gap.

USCIS instead plans to propose to eliminate employment eligibility for K-1 nonimmigrants, in order to be more consistent with the overall intent of the K- 1 visa.

 

This 'employment authorization' is what the SSA uses to justify giving SSN's to K-1's. If the Employment Authorization is eliminated, they would no longer have that (on paper) justification.

[david_dawei]

This 'employment authorization' is what the SSA uses to justify giving SSN's to K-1's. If the Employment Authorization is eliminated, they would no longer have that (on paper) justification.

I agree with the concern of the elimination.. and it does follow that SS offices might follow suit. But I don't know enough about SS to say what they will truly do or if there are other doors to enter in order to get a SSN (ie: I would think one can get a SSN for non-work reasons)...

[Randy W]

This 'employment authorization' is what the SSA uses to justify giving SSN's to K-1's. If the Employment Authorization is eliminated, they would no longer have that (on paper) justification.

I agree with the concern of the elimination.. and it does follow that SS offices might follow suit. But I don't know enough about SS to say what they will truly do or if there are other doors to enter in order to get a SSN (ie: I would think one can get a SSN for non-work reasons)...

 

It looks like the SSA has some new rules (Oct., 2006) - http://www.ssa.gov/pubs/10096.html - for a non-citizen, your immigration status determines your SSN eligibility.

 

Previously, they would accept a letter from a government agency which required an SSN.

 

They don't mention K-1's, so I assume their rules haven't changed there yet.

 

Now -

* Complete an Application For A Social Security Card (Form SS-5); and

* Show us original documents proving your:

o Immigration status;

o Work eligibility;

o Age; and

o Identity.

* Take your completed application and original documents to your local Social Security office.

 

and -

Do you need a number for other government services?

 

Lawfully admitted noncitizens can get many benefits and services without having a Social Security number. You do not need a number to purchase savings bonds, conduct business with a bank, register for school or apply for educational tests, obtain private health insurance, apply for school lunch programs or apply for subsidized housing.

Edited November 25, 2006 by Randy W (see edit history)

[Guest Duke]

As a data point, I can confirm my EAD filed through Chicago PO Box was transfered to CSC by NBC last week. I wonder if it is to be married up with my I-130?

I don't think so... I think your I-130 was filed for your [K3] wife.. goes to the lockbox, then NBC and eventually to a local district [Field] office where the interview will occur. The EAD is sent to CSC. Does this sound correct?

 

I don't know. My I-130 was approved in California after being transferred there from Nebraska. I suppose it's still at NVC, since I haven't continued to process it. I haven't a clue what happens to ignored I-130's.

[david_dawei]

As a data point, I can confirm my EAD filed through Chicago PO Box was transfered to CSC by NBC last week. I wonder if it is to be married up with my I-130?

I don't think so... I think your I-130 was filed for your [K3] wife.. goes to the lockbox, then NBC and eventually to a local district [Field] office where the interview will occur. The EAD is sent to CSC. Does this sound correct?

 

I don't know. My I-130 was approved in California after being transferred there from Nebraska. I suppose it's still at NVC, since I haven't continued to process it. I haven't a clue what happens to ignored I-130's.

sorry... I was thinking you file AOS.. now remember you have not !! Once you file AOS, I think USCIS will get it from NVC. I think it has a year self-life at NVC (?).