The E-3 visa, exclusive to Australian nationals seeking to work in a specialty occupation, is a nonimmigrant visa that does not tolerate immigrant intent.
E-3 visa and non-immigrant intent
Immigrant intent is the present or current intent to immediately apply for or pursue a green card in the United States or to carry on activity as if one were a green card holder of the US. Unlike an H-1B visa or L-1 visa, an E-3 visa holder cannot have both nonimmigrant intent and immigrant intent (holding both of these intents simultaneously is referred to as “dual intent”).
Due to the fact that the E-3 visa does not tolerate immigrant intent or dual intent, many E-3 individuals have the mistaken belief that they cannot pursue a green card while on an E-3 visa.
The fact is an E-3 visa holder can pursue a green card under the right circumstances.
2 Ways to Apply for a Green Card
There are two ways to apply for a green card:
- In the US via the adjustment of status route; or
- From abroad via the immigrant visa route.
The adjustment of status route is available only to individuals who are physically present in the US. The immigrant visa route is available to individuals regardless of where in the world they are situated.
Analysis of Immigrant Intent
The analysis of immigrant intent has to do with what someone thinks you will do once in the US or what someone thought your intentions were when requesting entry to the US.
- Do you intend to pursue a green card in the US via the adjustment of status route once in the US?
- Do you intend to behave as if you are a green card holder in the US once in the US?
- Did you clearly intend to pursue a green card in the US via the adjustment of status process when you requested entry to the US in the E-3 visa status?
These are the sort of questions that could circulate regarding the E-3 and immigrant intent.
Immigrant intent can be analyzed during the following instances:
- When applying for an E-3 visa at a US Consulate;
- When requesting entry to the US in the E-3 visa status at a port of entry; and
- When applying for a green card in the US via the adjustment of status route after entry on an E-3 visa.
If it is determined that you have or had immigrant intent during one of these instances, the results could be disastrous.
When applying for a visa, if the consular officer suspects that you have the intent to apply for a green card once in the US via the adjustment of status route or that you have the intent to carry on activity once in the US that is only consistent with that of a permanent resident, they could conclude that you have immigrant intent and deny the visa application.
When requesting entry to the US at a port of entry, if a Customs and Border Protection officer determines that you have the intent to pursue a green card once in the US via the adjustment of status route or that you have the intent to carry on activity once in the US that is only consistent with that of a permanent resident, they could conclude that you have immigrant intent and not permit you entry to the US.
When submitting an adjustment of status application in the US to adjust your status from the E-3 visa status to permanent residency status, if you do it too soon after entry to the US on an E-3 visa, there could be a determination that you probably had immigrant intent when you were requesting entry to the US in the E-3 visa status, which could potentially lead to a denial of the application.
Navigating Immigrant Intent via the Immigrant Visa Process
One way to navigate the immigrant intent issue when pursuing a green card is via the immigrant visa route. One can pursue a marriage green card via the immigrant visa route or an employment based green card.
The immigrant visa route ultimately requires the E-3 visa holder at the end of the green card process to attend an immigrant visa interview at a US Consulate abroad in their home country. For Australian citizens, this would be the US Consulate in Sydney.
The reason this allows an E-3 visa holder to avoid immigrant intent issues is that they have specifically elected to pursue the green card from abroad, not in the US. As strange as it might sound, having the intent or desire to pursue a green card from outside of the US is permitted and not considered “immigrant intent” as compared to having the intent to pursue a green card in the US via the adjustment of status route.
Additionally, having a family member or employer submit an immigrant petition on your behalf is not enough technically on its own to conclude that you have immigrant intent, especially if you understand and can articulate that you have elected to eventually process the green card from a consulate abroad.
Navigating Immigrant Intent via the Adjustment of Status Process
As discussed above, one can also apply for a green card via the adjustment of status route in the US.
This route is the one that can trigger immigrant intent issues.
As mentioned, the E-3 visa, like many other US visas, such as the F-1, TN, and B-1, for example, does not tolerate immigrant intent. This means, as explained in detail above, that you cannot have the intent, when applying for an E-3 visa or when requesting entry to the US at a port of entry in the E-3 status, to apply for a green card in the US via the adjustment of status route.
It is important to note that the concept of “intent” is subjective and can change. It is possible that when an individual was applying for an E-3 visa at a consulate or requesting entry to the US in the E-3 status that they did not have immigrant intent, but their intent changed sometime after entry to the US.
For example, someone could enter the US with an E-3 visa and sometime after entry decide that they want to pursue a green card via the adjustment of status route. This most often occurs in the green card through marriage context, but it could also occur in the employment based green card context.
One extremely important concept to understand in this context is that while your intent is subjective, submitting an adjustment of status application too soon after entry could be enough on its own to conclude that you had immigrant intent at the time of entry. While it is not codified in the regulations, there is guidance issued to officers stating that they can make an automatic presumption of immigrant intent if an individual enters the US on a nonimmigrant visa that does not tolerate immigrant intent and submits an adjustment of status application within 30 days of entry.
If an adjustment of status application in this context is submitted between 30 and 60 days of entry to the US, there could be a rebuttable presumption of immigrant intent, which means they could make the accusation but give you the opportunity to rebut it. This is a very important concept because the consequences of not adhering to the 30/60 day rule, as it’s is known, could be disastrous.
Diversity Visa Lottery and Immigrant Intent
The last thing on this topic that is worth mentioning is that merely registering for the annual Diversity Visa Lottery is not an indication of immigrant intent.
You are not technically applying for a green card when you register for the Diversity Visa Lottery, you are merely entering your name and information in a lottery for the potential future chance, if selected by the lottery, to apply for a green card.
