The question whether a Fiance Visa beneficiary can obtain a work permit during the 90 days visa validity comes up frequently. The K-1 fiance visa was created exclusively for United States citizens engaged to a foreign citizen. It allows a United States citizen to bring their foreign fiance to the United States to live with them permanently, provided that they get married within 90 days of the foreign fiance’s arrival. The United States citizen is called the petitioner and the foreign fiance is called the beneficiary.
This issue came up recently at a meeting between representatives of the American Immigration Lawyers Association and Customs and Border Protection Reps.
By regulation, K-1 nonimmigrant aliens are authorized to engage in employment pursuant to and incident to their status, but they must apply to USCIS for an EAD. 8 C.F.R. §274a.12(a)(6). The EAD requirement creates a significant problem since USCIS routinely takes approximately 90 days to issue an EAD, and applicants may only hold K-1 status for 90 days following admission. Thus, a K-1 entrant cannot effectively obtain work authorization during the period of K-1 admission, even though he or she is supposedly work-authorized “incident to status.”
A Form I-94 indicating that an individual K-1 is authorized for employment is an acceptable List C document for Form I-9, which along with an acceptable List B identity document, is sufficient to prove work authorization to a U.S. employer. In the past, CBP issued I-94s to K-1s at admission which bore the designation “work authorized incident to status.” However, it appears that CBP is no longer annotating K-1 I-94s with this designation.
Due to the practical impossibility of timely EAD issuance by USCIS to K-1 nonimmigrant aliens, will CBP resume the practice of annotating K-1 I-94s as “work authorized incident to status” at the ports of entry?
CBP Responded at the meeting: A K1 must apply to USCIS for an EAD.
Again, this is very unpractical for K1 applicants but for now this is the policy.