December 13, 2016 Matthew G. Curtis

E-3 Visa – Post-Approval

I just entered the US on an E-3, now what?

The E-3 visa is a popular option for Australian nationals, seeking to enter the US to work for a sponsoring employer in a “specialty occupation.” You can read more about the requirements for the E-3 visa here.

But what should you be aware of after you have completed your interview and entered the US in the E-3 status?

Entering the US on your E-3 visa stamp

When entering the US on your E-3 visa stamp, it is important to understand that you are seeking to enter for a temporary period only to engage in your E-3 specific employment as outlined in the E-3 application.  When going through US Customs, you’ll need to present your E-3 visa stamp to the US Customs and Border Patrol Agent.

It is within the right of the agent to ask you questions related to your E-3 and even not admit if they think something is amiss.  As such, you should be well versed as to your employment and the contents of your E-3 visa application. Additionally, we highly suggest that you always travel with a copy of your Labor Condition Application (LCA) and recent pay statements, if it is not your first entry, as they could be requested by an agent.

Once you have entered

As a preliminary note, one is allowed to enter the US up to 10 days prior to their official start date.

Once you have entered the US on an E-3 visa, it’s a good idea to check the accuracy of your I-94 to prevent any unnecessary confusion or problems down the road. The I-94 should reflect the correct class of admission, date of admission, and an “Admit Until Date” consistent with the validity period end date shown on your E-3 visa stamp.

Occasionally, immigration officers annotate the I-94 record or entry stamp with an additional ten-day “grace period.”

Awareness of your E-3 time is crucial.

A lapse in status, which can be caused by staying in the US beyond the expiration date of one’s E-3 status, can have very serious consequences, including ineligibility for other US immigration benefits and multi-year bars to readmission into the US Many of these consequences are triggered regardless of whether the lapse was intentional or accidental.

You should also inform your employer that you have successfully entered on the E-3 visa, provide them with a copy of your visa for their records, and apply for a social security card. You may apply for a Social Security Number immediately upon entry into the US as an E-3 visa holder.

You can go to the nearest Social Security Office with your passport, visa and I-94 (showing entry in E-3 status).

To find your local Social Security Office, enter your zip code into the official SSO locator.

Maintaining E-3 Status

It is the responsibility of all foreign nationals in E-3 visa status to maintain their E-3 status and to not engage in any activity that would violate the terms of their status in the US. Furthermore, it is also the responsibility of accompanying family members in the E-3D visa status to maintain their status in the US.

E-3 visa status is employer specific and requires the sponsorship of a US employer. The E-3 foreign national is authorized to work only for the employer who has sponsored him/her for the E-3 status. Ceasing to work for the employer or working for any other employer or “freelancing” would constitute a violation of E-3 status.

Furthermore, an individual in the E-3 status is required to work for the E-3 employer as per the terms of the E-3 application filed.

In addition to being employer specific, E-3 visa status is also job specific and location specific. An E-3 foreign national must be employed in the position for which E-3 status was approved in the location(s) specified on the Labor Condition Application on file with the US Department of Labor.

Spouse & Children – E-3D Visa

The spouses and children under 21 of an E-3 visa holder are entitled to obtain E-3D visas. Individuals in the US on an E-3D are allowed to apply for an Employment Authorization Document (Form I-765) through USCIS which will allow them to work in the US and obtain a social security number.

However, an E-3D visa individual can only submit the application after entering the US At the present moment it takes 2-3 months for approval of the Employment Authorization Document.

Employment on an E-3D may be in any role, and may be full time, part-time, freelance or casual work. There is no sponsorship of an employer required in connection with working on an E-3D.

E-3 Visa Extension

E-3 visa applicants may be admitted for up to a two-year period, which is renewable indefinitely, provided the individual is able to demonstrate that he/she does not intend to remain or work permanently in the United States. Furthermore, because the E-3 classification is considered a temporary status, employers must prove that the professional’s services are still needed, and, technically, USCIS or a consulate abroad could reject further extensions.

There is no limit to the number of E-3 visas that an applicant may hold over the course of their life.

While technically possible to obtain an extension while in the US on an E-3, doing so requires the applicant to petition through the US Citizenship & Immigration Service (USCIS) in the US With additional filing fees payable to the US Government, this is usually a more time consuming and bureaucratic process than obtaining a new visa stamp abroad.

E-3 Visa Transfer

Similar to an extension, while technically possible to transfer your E-3 visa to a different employer while in the US, doing so requires the applicant to petition through the USCIS. Again, this option is more time consuming and bureaucratic for a variety of reasons. Applying at a consulate abroad is almost always going to be a better and more efficient option.

For more info on the transfer process, please see E-3 Visa Transfer.

Termination of Employment when on an E-3 Visa

Based upon a change of law, beginning January 17, 2017, an E-3 visa holder whose employment is terminated early will have a grace period of “…up to 60 consecutive days, or until the existing validity period ends, whichever is shorter, whenever employment ends for these individuals.”

To qualify, the E-3 visa holder must have a valid E-3 visa and I-94 card. During the 60-day period, the foreign national would not be authorized to work, but could potentially apply for a change of employer or change of status or make arrangements to get a new visa stamp abroad to work for a new employer. This 60-day grace period will only be available to a qualifying E-3 individual once per authorized validity period of an approved visa.

Regardless of the increased grace period post-termination, it falls entirely upon the employee to take immediate and decisive action in order to ascertain that his or her eligibility for immigration benefits in the future is not jeopardized due to unauthorized overstay.

It’s important to navigate your next move with capable immigration counsel to ensure proper navigation of this transitional situation.

E-3 Visa to Green Card

While it is important to understand that the E-3 visa is not a dual intent visa, like the H-1B or L-1, it is still possible to pursue permanent residency in the US (aka a “green card”) while holding an E-3 visa.

A green card allows an individual to make the US their permanent residence and allows them to live and work in the US as they wish. There are a variety of routes to obtaining a green card, but the most common routes are through employment or through marriage.

The employment based green card route usually requires sponsorship from an employer, unless you fall into one of the self-sponsorship categories (“National Interest Waiver” or “Extraordinary Ability”) and is a multi-stage process.

The green card through marriage option requires an individual to be married to a US citizen or permanent resident.

Matthew G. Curtis

Matthew G. Curtis is an Associate Attorney at Lightman Law Firm. Prior to joining our firm, Mr. Curtis was the Law Clerk to the Honorable Mitzy Galis-Menendez, J.S.C., in the Hudson County Superior Court's Criminal Division. Mr. Curtis is a graduate of University of Richmond, School of Law in Richmond, Virginia. As a law student, Mr. Curtis spent a summer as an aide to Barry Gardener, Member of Parliament for Brent North in London, England, one of Britain's most culturally diverse constituencies. Mr. Curtis gained substantial experience with Federal Administrative law while working for the Environmental Protection Agency in Washington, D.C. He has authored two law journal articles: When Responsive Legislation Ignores the Forest for the Trees (First place, Richmond Journal of Global Law and Business' Daniel T. Murphy Writing Competition), and Legislative Control of Menhaden Fisheries in Virginia. Mr. Curtis is a member in good standing of both the Bar of the State of New York and the State of New Jersey and a member of the American Immigration Lawyers Association (www.AILA.com), the world's largest organization of immigration lawyers. To discuss your possible case with Mr. Curtis or another immigration lawyer from Lightman Law Firm LLC, call (212) 643-0985 or fill out the consultation request form on your right. A representative of our firm will contact you shortly upon review of your request.