H1B Visa Lawyer Blog
Every year, thousands of U.S. citizens petition the U.S. Citizenship and Immigration Services (USCIS) to allow their foreign fiancé to come to the United States under a K-1 visa . Under a K-1 visa, the foreign national must marry the petitioner within 90 days of arriving in the United States, or they must leave. After marriage, the foreign national utilizing the K-1 visa may adjust their temporary immigration statute to that of permanent residence in order to obtain the immigration benefits associated with the permanent resident status.
Once a foreign national arrives in the U.S., the Social Security Administration (SSA), under the Social Security Act, is required to assign Social Security Numbers (SSN) to “aliens at the time of their lawful admission to the United States either for permanent residence or under other authority of law permitting them to engage in employment in the United States…” Federal law authorizes K-1 visa holders to work incident to their visa status, enabling K-1 visa holders to have SSNs. Additionally, the Code of Federal Regulations requires that K-1 visa holders who seek employment must also apply for an Employment Authorization Document (EAD) with the USCIS. However, the requirement of obtaining an EAD before marriage has been relaxed due to time processing delays. Once the foreign national arrives in the U.S., they only have 90 days to marry or return to their foreign country. The normal processing time for the issuance of an EAD card can range anywhere from 2-5 months depending on the service center, therefore, the USCIS began issuing K-1 visas without the requirement of first obtaining an EAD card. The non-issuance of EADs is ultimately were the problem lies, where the fraud is consummated.
The Social Security Administration’s policy of issuing SSNs to K-1 visa holders without requiring that they present an EAD, creates opportunities for misuse. There is concern that having an SSN makes it easier for K-1 visa holders who do not marry to remain in the country after their immigration status expires. Based on the sample analysis conducted by the Office of the Inspector General (OIG), an estimated 371 SSNs were assigned during the audit period to K-1 visa holders who did not marry their American petitioner and remained in the U.S. beyond the date USCIS authorized.
The OIG recommended that the Social Security Administration not assign SSNs to K-1 visa holders until they marry and adjust their immigration status with the USCIS, in order to prevent misuse. Additionally, the OIG believes that the SSA has a stewardship responsibility to ensure compliance with all policies and procedures and improve the integrity of the enumeration process.
In summary, the vision is that the non-assignment of SSNs to K-1 visa holders and the consistent and improved compliance by the SSA with policies and procedures will reduce the amount of misuse by K-1 visa holders.