Is there any option for the spouse of a US citizen to obtain work pending a green card?

Question

My daughter married a Canadian citizen a year and a half ago, and they began the process of applying for permanent residence status for him so that he can live and work in the US. The Covid pandemic has put the face-to-face interview on hold, and the government doesn't seem interested in relaxing that requirement so his green card is delayed indefinitely.

They both have passports, and with the marriage certificate have been able to cross the border to see each other periodically. However, the conventional wisdom they are adhering to is that he cannot apply for work in the US, and cannot stay longer than 6 months at a time, so they are choosing to live apart for now. (They are both living with parents and would probably need to combine incomes to maintain a comfortable standard of living)

I wanted to help them consider options that just might allow for an interim solution to their woes. A quick search turned up that a K1 visa is available for Fiancés of US citizens that would allow one to work. It also shows several other different categories of temporary work visas available.

I am looking for work myself now, so I am getting pretty familiar with the type of questions employers ask. If “US Person” status is not required they often ask if sponsorship is required to work. When my son in law first applied my daughter was a full time student and didn’t have the income required to sponsor him. Therefore, I agreed to be his sponsor.

I plan to continue researching, but was hoping that someone with more experience might have a suggestion that could point us in the right direction. Along those lines I have a few questions regarding the best, (fastest...) path forward so that they can move in and start a life together:

1. Is the K1 visa even an option now, or are they beyond that point already? If not, is there another visa type available for spouses short of a green card?

2. Is there anything legally preventing him from applying for, and accepting a job in the US right now?
   a. Might a written job offer give him to the status needed to obtain the required work visa to actually start working?
   b. Can he legally answer that he does not require a sponsor because I am his sponsor?

3. Even if he is unable to find work, surely as the spouse of a US citizen he ought to be able to stay in the US for longer than six months pending final approval of permanent residence status. Is this not the case?

Answer 1

He cannot get K1 since he is married. K1 is only for fiancés. There is the K3 visa for spouses of US citizens who are waiting on a pending I-130, but K3 has been obsolete for many years, and he is very unlikely to get a K3 even if he applies for it. My understanding is that they process he I-130 and the I-129F for K3 together, and the I-129F will not be approved faster than the I-130, at which point one is no longer eligible for K3 and will continue processing for the immigrant visa directly. (Also note that if he enters the US on K3, he would have to apply for Adjustment of Status, which is expensive and takes a year or more, before he becomes a permanent resident, whereas if he enters the US on an immigrant visa, he becomes a permanent resident immediately.)

If he were inside the US and applying for a green card through Adjustment of Status in the US, he would be eligible to apply for an EAD (employment authorization document) for free together with the Adjustment of Status filing, which would allow him to work in the US after a few months while his Adjustment of Status is still pending. However, since he is outside the US and getting a green card via Consular Processing for an immigrant visa, that is not available to him. And he cannot enter the US as a visitor or most other types of nonimmigrant status with a preconceived intent to file Adjustment of Status during that stay.

Having a pending or approved I-130 does not allow him to stay in or work in the US. As he is doing Consular Processing, he does not have the ability to stay in the US until he enters the US with his immigrant visa (at which point he would be a permanent resident). People doing Adjustment of Status can stay in the US while the application is pending, but Adjustment of Status is only for people applying from within the US.

Most types of nonimmigrant status, including TN work status, are subject to presumption of immigrant intent, and so he would be very likely to be denied entry even if he had a job offer, since he is planning to immigrate to the US very soon. The only work statuses that are not subject to immigrant intent are H1b and L1, and those are not likely available to him in the near future (H1b has a lottery and requires entry in the April before work starts in October. L1 is for intra-company transferees who have already worked for the company for 1 year.)