Worked without EAD

W

wowgc

Registered Users (C)
Hi

One of my friend's wife working continuously from last year. But during her EAD renewal there was a gap for a month between 1st ead and the EAD renewal approval. But she got the pay and her name is in the payroll. She works in a public firm(government).


1. will it be a problem for her i485 approval.

if yes,
a. How (how BCIS will know )
b. How to handle this issue.


Thanks in advance for your valuable suggestions
 
As per Murthy.com ( i dont know the exact link), the EAD renewal will be approved with the start date as the expiry date of 1st EAD. So, your friend should not have any problem.

Search in murthy.com for this information OR better talk to a/your lawyer.
 
Pray BCIS does't pull her IRs records or prepare her to contact the lawyer and prepare to file under 245(i) section with 1000$ fine and remain in US till approval. unless there's no gap of single day between the two approved EADs.
 
Originally posted by ghost-rider
Pray BCIS does't pull her IRs records or prepare her to contact the lawyer and prepare to file under 245(i) section with 1000$ fine and remain in US till approval. unless there's no gap of single day between the two approved EADs.
Click to expand...

GR
which IRS records do you mean?
can you provide a link to this section 245(i)?
 
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income tax records where u file ur tax and ur tax deductions were taken during that time and your social security taken out from your pay stubs. worst you can be called fro intervies and ur employer has to verify with letter or some payroll register evidence that u were not paid during that time.

245 is a section for ppl who hv worked illeagal for less then 180 days in US they can file there 485 with 1000$ fine and still get approved.talk to the lawyer he might be able do some changes in existing 485.
 
What happens if my nonimmigrant employment authorization expires after I file for AOS if I don't have an EAD?

A7 There is no penalty that attaches to an applicant for AOS. The applicant's employer, however, would be subject to being fined for employing the applicant without authorization.



I found this on the FAQs but really beive its not true. You will definately land in some trouble if u work without authorization.
 
Originally posted by Atri123
As per Murthy.com ( i dont know the exact link), the EAD renewal will be approved with the start date as the expiry date of 1st EAD.
Click to expand...

CSC doesn't issue backdated EAD
 
ghost-rider,
I inspected section 245(i) of the Immigration and Nationality Act

(http://www.immigration.gov/lpBin/lp...emplates&fn=document-frame.htm#slb-act245fn2a)

and I did not find anything what you are referring to. Instead, in 245(c) I only found this

"...who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States..."

which means that adjustment of status may be rejected with some evidence of unauthorized employment prior to filing 485.

Of course, I believe what lawyers' sites post, but I cannot find any restrictions in the law (INA) concerning gaps in EADs.
Maybe someone can clarify? I'm just curious, because gaps in H1B work fine, so, why EAD is different?
 
Hi there,

I notice there are several webs suggesting it is OK to work without legal authorization. The reason is that it is emploer's responsibility and the employer will get penalty rather than the illegal worker.

But I have a impression that the law is not stated in this way. Please see the following from 245(c) about the conditions for adjudicating I485:


... ...

In all other cases, including those in which the alien's previously granted employment authorization expires during the pendency of the adjustment application, the adjustment applicant must await issuance of an employment authorization document ("EAD") from the Service before he or she may lawfully engage in employment. For this reason, adjustment applicants are strongly urged to file a Form I-765 application on the basis of 8 CFR 274a.12(c)(9) concurrently or as soon as possible after filing the Form I-485 to avoid a lapse of employment authorization. Further, in all cases, if the district director or service center director denies the alien's application for adjustment of status, any employment authorization granted to the alien on the basis of the adjustment application will be subject to termination pursuant to 8 CFR 274a.14(b).

...

From above, we can see clearly that during the pendency of the adjustment application, the gap is not allowed.

I don't understand why many lawyers say it is OK. There must be some cases for this. For example, try to blame it is the employer's fault (technical fault the one can not control)... . Hope someone can stand out and give an explanation.

To my personal opinion, your friend should see a lawyer to find out the right way.

In addition, in my impression, 245(i) is also related to some timeframe (like must have filed petition before Dec blar blar ...)

Maybe I am wrong and I hope so.

Duke
 
Duke,

your're right, the gap is not allowed, but there is no indication of severe penalty for this. Also, my opinion is that 245(c) warns not about the gap between 485-related EADs but between "previously granted employment authorization" and the one asked concurrently with 485.

"For this reason, adjustment applicants are strongly urged to file a Form I-765 application <...> concurrently or as soon as possible after filing the Form I-485 to avoid a lapse of employment authorization. "
This is understandable, because there is no garantee that 765 will be honored just by the fact that 485 is filed. But once EAD is granted... and the applicant applied for extension about 3 monts in advance. Okay, this is just my point, it is always good to talk to the lawyer.
 
BCIS can't punish you because they are slow

According to my lawyer, it is ok if applied 15 days before the expiration date. BCIS can't punish you because of their slow speed.
 
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Hi folks,

I re-examined the law and found there are some inconsistency about this. Here is the items:

245.1 eligibility:
restricted alien
… …
(10) Any alien who was ever employed in the United States without the authorization … … . For purposes of this paragraph, an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application. (Added 7/23/97; 62 FR 39417)

First Link (274a.12(c) (9) ):
For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an "unauthorized alien" as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application.

Second Link (62 FR 39417)
Clarification of the Term "Unauthorized Alien" in New Section 245(c)(8) of the Act For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an "authorized alien" as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service to engage in employment, or if the alien: (a) Has not previously engaged in unauthorized employment at any time; (b) was authorized, at the time of filing the adjustment application, to be employed by his or her current employer pursuant to a nonimmigrant classification permitting such employment; and (c) would otherwise have been authorized to continue employment had he or she not filed the application for adjustment of status. In all other cases, including those in which the alien's previously granted employment authorization expires during the pendency of the adjustment application, the adjustment applicant must await issuance of an employment authorization document ("EAD") from the Service before he or she may lawfully engage in employment.

… …

Sorry for the lengthy post. Here comes my analysis,

But from above, we can see the first link exempts the I-485 adjustee from falling to the category unauthorized alien "defined by 274A(h)(3)" for the purpose of 245(c). Clearly this term favors wowgc's friend.

But the attached amendment 62 FR 39417 clarifies the boundary of "unauthorized alien" for the purpose of 245(c), which actually does not include EAD expiration case.

This means that wowgc's friend is not unauthorized alien defined by 274A but is the one defined by 62 FR39417.

From the terms of 241.1 Eligibility, if we exam the case in terms of the amendment, wowgc's friend is ineligible. But if we forget the bracket "(Added /23/97; 62 FR 39417)", then he/she might not be considered as unauthorized alien.

Don't blame me on the above negative comments. I am trying to interpret the law in a strict way.

In practice, because the law is so complex, different practitioners and law enforcers might come to different ways (even the same person different ways on different days, depending on his mood/his experience). Not every law enforcer will think in this way and I believe, in most case, officers will ignore this gap.

My suggestion is:
1. don't ask don't tell
2. find lawyer to clarify this/way to bail out
3. find BIA case on the web.

I also hope there is anyone who can counter my claim with law items.

Duke
 
Hi folks,

I re-examined the law and found there are some inconsistency about this. Here is the items:

245.1 eligibility:
restricted alien
… …
(10) Any alien who was ever employed in the United States without the authorization … … . For purposes of this paragraph, an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application. (Added 7/23/97; 62 FR 39417)

First Link (274a.12(c) (9) ):
For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an "unauthorized alien" as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application.

Second Link (62 FR 39417)
Clarification of the Term "Unauthorized Alien" in New Section 245(c)(8) of the Act For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an "authorized alien" as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service to engage in employment, or if the alien: (a) Has not previously engaged in unauthorized employment at any time; (b) was authorized, at the time of filing the adjustment application, to be employed by his or her current employer pursuant to a nonimmigrant classification permitting such employment; and (c) would otherwise have been authorized to continue employment had he or she not filed the application for adjustment of status. In all other cases, including those in which the alien's previously granted employment authorization expires during the pendency of the adjustment application, the adjustment applicant must await issuance of an employment authorization document ("EAD") from the Service before he or she may lawfully engage in employment.

… …

Sorry for the lengthy post. Here comes my analysis,

But from above, we can see the first link exempts the I-485 adjustee from falling to the category unauthorized alien "defined by 274A(h)(3)" for the purpose of 245(c). Clearly this term favors wowgc's friend.

But the attached amendment 62 FR 39417 clarifies the boundary of "unauthorized alien" for the purpose of 245(c), which actually does not include EAD expiration case.

This means that wowgc's friend is not unauthorized alien defined by 274A but is the one defined by 62 FR39417.

From the terms of 241.1 Eligibility, if we exam the case in terms of the amendment, wowgc's friend is ineligible. But if we forget the bracket "(Added /23/97; 62 FR 39417)", then he/she might not be considered as unauthorized alien.

Don't blame me on the above negative comments. I am trying to interpret the law in a strict way.

In practice, because the law is so complex, different practitioners and law enforcers might come to different ways (even the same person different ways on different days, depending on his mood/his experience). Not every law enforcer will think in this way and I believe, in most case, officers will ignore this gap.

My suggestion is:
1. don't ask don't tell
2. find lawyer to clarify this/way to bail out
3. find BIA case on the web.

I also hope there is anyone who can counter my claim with law items.

Duke
 
Duke,

I am sorry to point this out, but you are totally confusing different aspects of the law. You are trying to match AOS eligibility requirements with unauthorized employment definition during AOS. It's like comparing apples and peaches - you can get amusing, but absolutely meaningless, results.

No wonder you find "inconsistency" in this ;)
 
my 2 cents

INS considers EAD renewal as replacement cards. As long you apply before the expiration and eligible(as AOS you are), I do not think they will make a issue out of it, if everything else is OK. Because, INS is supposed to approve employment authorization for AOS persons.


If everything else is good, and INS does not suspect your case, I do not think they will go to a point to check various status of employments..

My wife has a similar problem this week where her EAD is expiring next week and we applied for renewal 60 days ago. We were thinking of taking her off the payroll/absence on leave etc.. She works for a big company and her HR said that they do not have any problem if she continues working as she already applied for renewal. All they asked is for a new I-9 and the renewal application reciept.

GG
 
Congratulations, GreenGuy,

your wife and your wife's company have broken the law. It was easy, wasn't it?

Just to reiterate things already carved in the stone:

1. It is OK to work while your H-1B extension is pending, for no longer than 240 days.
2. It is not OK to work while your EAD extension is pending; that is why Interim EAD exists - you must obtain it in order to continue your paid employment.

In fact, I believe that a good I-485 adjudicator can detect a gap between EAD's (all applications are joined in the same A-file, remember), so establishing the unauthorized employment.

Unauthorized employment, in itself, depending on the overall duration, could be grounds for AOS denial. I think I understand where those "progressive" lawyers take their advices from. They think that the total amount of time spent in unauthorized employment will be less than 180 days. Which is a mistake, in my opinion. Two mistakes, actually. Firstly, I would not engage in no unauthorized employment, and secondly, I would not work for that long knowingly.

While you may not get your status adjusted this way, with the unauthorized employment, that is, it is still possible to go through hoops with consular processing. Actually, before 245(i) it was the only way to get a green card for those people. But you may need to apply for a waiver of inadmissibility, which is ... well ... a lengthy procedure.

The bottom line: don't engage in unauthorized employment no matter how easy it would appear to you. The consequences could get you in a year, or a couple of years effectively rendering those years as spent in vain.
 
Here is my 2 cents..

All AOS applicants are eligible by law to seek employment in the US. The document that establishes this authorization is the EAD.
Being an AOS applicant you are already permitted to seek employment but to prove that you have this permission you need EAD. Therefore it is possible to conclude that even if EAD expires for a few days, as long as your AOS is pending you have the permission to work.
If you look at I-9, the form used to verify employment eligibility there is a provision that says if a document establishing employment authorization is not available, proof of having applied for such a document is acceptable for 90 days. The actual document needs to be submitted within 90 days. No distinction is made as to what kind of documents this applies to, therefore it is safe to assume that it applies to EVERY kind of document, including EAD.
 
Originally posted by nkm-oct23
All AOS applicants are eligible by law to seek employment in the US. The document that establishes this authorization is the EAD.
Being an AOS applicant you are already permitted to seek employment but to prove that you have this permission you need EAD. Therefore it is possible to conclude that even if EAD expires for a few days, as long as your AOS is pending you have the permission to work.
Click to expand...

Wrong! Pending AOS does not preclude employment eligibility, while EAD does. Therefore, only a valid unexpired EAD gives you ability to engage in a paid employment.

If you look at I-9, the form used to verify employment eligibility there is a provision that says if a document establishing employment authorization is not available, proof of having applied for such a document is acceptable for 90 days. The actual document needs to be submitted within 90 days. No distinction is made as to what kind of documents this applies to, therefore it is safe to assume that it applies to EVERY kind of document, including EAD.
Click to expand...

Absolutely agree... with one but. If EADs were backdated to the application date or at least the expiration date of the previous EAD, this would be just fine. But they aren't. Therefore, you will be engaging in unauthorized employment if you attempt to work on EAD application receipt, even if you get Interim EAD down the line within 90 days...

Remember, I-9 was created for employers. It is a CYA (cover your erm... behind) sort of thing. If you tell your employer that it is OK to work on the EAD receipt, they may believe you, but you will be at fault, not them.
 
I-9 allows you to work (although for 3 months only) just using receipt for EAD. period. It does not matter if the form is for employers or not. It states a requirement and that holds.
 
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