USCIS on K-1 employment authorization
Folinskyinla
AILA posted a memo from CIS to the ombudsman which, in part, included
their discussion of EAD for K-1's. Part of the memo is not correct, but
that is just my opinion. The relevant text with typos introduced by cut
& paste from a PDF to an ASCII block:
------------------
Third, the Ombudsman reammends that USCIS amend the regulations such
that K-1
noaimmigrants are not subject to breakar in employment authorization.
Pwsuant 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.
----------------------------------------------
--
Certified Specialist
Immigration & Nat. Law
Cal. Bar Board of Legal Specialization
Posted via http://britishexpats.com
Jenney & Mark
Could you (or someone) please clarify what the following are supposed to
mean (particulary bolded text):
Third, the Ombudsman reammends that USCIS amend the regulations such
that K-1 noaimmigrants are not subject to breakar in employment
authorization.
Such employment authorization is disaetioniuy in nature and is not
mandated by statute.
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.
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.
Obviously whoever wrote this up originally is not a great typist, but I
honestly can't figure out what those are supposed to mean...
~ Jenney
--
Posted via http://britishexpats.com
Noorah101
> Could you (or someone) please clarify what the following are supposed
> to mean (particulary bolded text):
>
>
> Third, the Ombudsman reammends that USCIS amend the regulations such
> that K-1 noaimmigrants are not subject to breakar in employment
> authorization.
>
> Such employment authorization is disaetioniuy in nature and is not
> mandated by statute.
>
> 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.
>
> 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.
>
>
> Obviously whoever wrote this up originally is not a great typist, but
> I honestly can't figure out what those are supposed to mean...
>
> ~ Jenney
I have no idea what this one was supposed to be, but it sure cracked me
up! :D I wonder if my fiance got a hily-baaed benefit when he came here
on his K-1?? LOL
Rene
Noorah101
> Maybe it's because I work with special needs students but I was able
> to read it w/o a lot of difficulty!
I could get the gist of the meaning of the memo....but couldn't really
say what those particular words Jenney mentioned were supposed to be.
Can you help us out?
Noorah101
Wow, that was kind of hard to read. LOL Thanks Mr. F. I guess if
USCIS does away with allowing the K-1 holder to work during the first 90
days, they'll issue an announcement, right?
psychobabbler1
> Wow, that was kind of hard to read. LOL Thanks Mr. F. I guess if
> USCIS does away with allowing the K-1 holder to work during the first
> 90 days, they'll issue an announcement, right?
>
> Rene
Maybe it's because I work with special needs students but I was able
to read it w/o a lot of difficulty!
--
Posted via http://britishexpats.com
Folinskyinla
> Could you (or someone) please clarify what the following are supposed
> to mean (particulary bolded text):
>
>
> Third, the Ombudsman reammends that USCIS amend the regulations such
> that K-1 noaimmigrants are not subject to breakar in employment
> authorization.
>
> Such employment authorization is disaetioniuy in nature and is not
> mandated by statute.
>
> 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.
>
> 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.
>
>
> Obviously whoever wrote this up originally is not a great typist, but
> I honestly can't figure out what those are supposed to mean...
>
> ~ Jenney
Hi:
As I said, I cut and pasted from a PDF document and I guess the
conversion to ASCII was not as clean as it could be.
"breakar" is "breaks" in the original.
"disaetioniuy" is "discretionary" in the original.
"hily-baaed" is "family-based" in the original.
"fiunily-based" is also "family-based" in the original.
The typist was just fine. It was the cut-and-paste between formats that
caused the confusion.
meauxna
Wow, a real example of the squeeky wheel getting acid instead of
grease....Thanks Mr Ombusdman! (not)
"Employment authorization for K-1 nonimmigrants is not grsnted
automatically incident to status"
Is this the part you think is wrong? I recall you saying the opposite of
the above in the past.
"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."
Hmm, perhaps when evaluating the "intent" of the K-1, our hily-values
gov't should consider how many families are able to survive in the US on
one income. Or worse, one woman's income. Doesn't seem very hily-
friendly to me.
It would be one thing to introduce/enforce this policy IF the Service
was able to produce employment auth to AOS applicants in something much
less than 3 months. This seems punative and azzbackward to common sense.
Is there someone the collective we should complain to?
It's really starting to look like a war on poor people. Seriously, with
the amount of time it still takes to even *get* a K-1 visa---well, I'm
sure all of this looks good on paper to whoever writes it out. Out in
Reality Land, it seems absolutely ridiculous (but then again think of
the poor K-3s!).
discuss. :)
edit: Thank you very much (sincerely--not like to the Ombudsman) to you
MrF for posting this. It will be interesting to see what happens.
Folinskyinla
Hi:
Personally, I think there is an administrative campaign against the K-1
visa. I wonder if there is lobbying to simply abolish the category. It
pays to remember that the K-1 is a "hybrid" and notially speaking,
somewhat a bastard one at that. We are still working under the
Immigration & Nationality Act of 1952, as amended after all. The K-1
was added to the law in early 1970. The first wide body 747 was just
starting to fly -- air travel was expensive and sometimes hard to get in
parts of the world.
The other weird thing is that the K-1 adjustment used to be almost a pro-
forma application -- processed on a walk-in basis! The K-1 visa is
processed AS IF it is an immigrant visa in the first place and IMHO, it
should be treated like any other admission but with a built in request
for evidence. I think lot of the problems are based upon the way it is
processed.
In the "if I were King" category, I would do away with K-1 non-immigrant
category and in its place create an IMMIGRANT visa -- however, at the
Port of Entry, the holder would NOT be "admitted" but would be "paroled"
in for "deferred inspection" with the marriage certficate to be produced
to complete "inspection" and then be admitted with a "green card."
Boiler
> Hi:
>
> Personally, I think there is an administrative campaign against the
> K-1 visa. I wonder if there is lobbying to simply abolish the
> category. It pays to remember that the K-1 is a "hybrid" and notially
> speaking, somewhat a bastard one at that. We are still working under
> the Immigration & Nationality Act of 1952, as amended after all. The
> K-1 was added to the law in early 1970. The first wide body 747 was
> just starting to fly -- air travel was expensive and sometimes hard to
> get in parts of the world.
>
> The other weird thing is that the K-1 adjustment used to be almost a
> is processed AS IF it is an immigrant visa in the first place and
> IMHO, it should be treated like any other admission but with a built
> in request for evidence. I think lot of the problems are based upon
> the way it is processed.
>
> In the "if I were King" category, I would do away with K-1 non-
> however, at the Port of Entry, the holder would NOT be "admitted" but
> would be "paroled" in for "deferred inspection" with the marriage
> certficate to be produced to complete "inspection" and then be
> admitted with a "green card."
So what did a Fiancee do before the K1?
All they have to do is stop JFK doing the stamp if they are worried
about temporary work authorisation.
Folinskyinla
> So what did a Fiancee do before the K1?
>
> All they have to do is stop JFK doing the stamp if they are worried
> about temporary work authorisation.
Hi:
There was no category, Immigrant or Non-Immigant, for an alien to come
to the US for the purpose of getting married and then adjusting.
Rete
> So what did a Fiancee do before the K1?
>
> All they have to do is stop JFK doing the stamp if they are worried
> about temporary work authorisation.
Simple. They entered the US as a visitor, got married, and applied for
adjustment of status.
--
I'm not an attorney. This disclaimer is valid in NYS!
Posted via http://britishexpats.com
Rete
> Hi:
>
> As I said, I cut and pasted from a PDF document and I guess the
> conversion to ASCII was not as clean as it could be.
>
> "breakar" is "breaks" in the original.
>
> "disaetioniuy" is "discretionary" in the original.
>
> "hily-baaed" is "family-based" in the original.
>
> "fiunily-based" is also "family-based" in the original.
>
> The typist was just fine. It was the cut-and-paste between formats
> that caused the confusion.
I corrected the cut and paste typos for you on another post.
AlmostThere1
> Hi:
>
> Personally, I think there is an administrative campaign against the
> K-1 visa. I wonder if there is lobbying to simply abolish the
> category. It pays to remember that the K-1 is a "hybrid" and notially
> speaking, somewhat a bastard one at that. We are still working under
> the Immigration & Nationality Act of 1952, as amended after all. The
> K-1 was added to the law in early 1970. The first wide body 747 was
> just starting to fly -- air travel was expensive and sometimes hard to
> get in parts of the world.
>
> The other weird thing is that the K-1 adjustment used to be almost a
> is processed AS IF it is an immigrant visa in the first place and
> IMHO, it should be treated like any other admission but with a built
> in request for evidence. I think lot of the problems are based upon
> the way it is processed.
>
> In the "if I were King" category, I would do away with K-1 non-
> however, at the Port of Entry, the holder would NOT be "admitted" but
> would be "paroled" in for "deferred inspection" with the marriage
> certficate to be produced to complete "inspection" and then be
> admitted with a "green card."
In other words, to avoid the problem of processing the requests that
never get adjudicated in time anyway we will get rid of the EAD category
to solve the problem. A bit of drastic solution but a great to meet to
processing deadlines.
On one hand, it bows to administrative reality that if heaven and earth
could be moved to issue the K-1 EAD in reasonable amount of time, the
time it takes to requalify for the new category of EAD renders this
point moot, unless the AOS EAD could be issued just as fast.
Based on most experiences here very few people have even gotten the 90
Stamp much less the EAD card. Therefore in some it won't affect people.
Though in this a catch-22 people won't apply for because they know they
can't get it therefore we don't need it. This directly affect the
ability of the people to earn a living, meaning they have to rely on
savngs and their spouse.
Canadian Note: If you're collecting EI/UI before come to the US, having
the EAD which gives to permission to work also entitles you to collect
up to maximum of 26 weeks of EI/UI in the US. cf.
http://www.hrsdc.gc.ca/en/ei/publications/outsidecanada.pdf
On the other hand, I was fortunate enough to be issued both a 90 EAD
Day, and my AOS EAD with no break in time. This was back in 2003 when
walk-in AOS in Boston was still done. I started a job the next week. I
would like to see be able to do this, most don't like sitting at home
doing nothing. They want to get out and work at something.
As for "If I were king idea" a very reasonable and logical suggestion,
no doubt to rejected because of this.
Folinskyinla
> Simple. They entered the US as a visitor, got married, and applied
> for adjustment of status.
Hi:
Assuming you got the visitor visa. Going to the US with intent to marry
and stay is not a bona-fide "visit." That was the rub.
As I said, the solution was not all that elegant, but it worked when
adjustment was a "walk-in" adjudication and who the hell needed
employment authorization. Then came the 1986 IRCA and IMFA legislation
and its been downhill since.