May 30, 2019 Douglas Lightman

The E-3 Visa, Green Card & Immigrant Intent

You’ve been working on an E-3 visa for a few years now and you want to make the US your home, at least for the foreseeable future. You might want to engage in activity beyond the E-3, not have to worry about renewing a visa every 2 years and/or make the US your permanent residence and perhaps one day pursue citizenship.

Obviously this is not the desire of every E-3 visa holder, and it doesn’t have to appeal to you. However, if it does and you have an available route via family or employment, then you may want to consider pursuing a green card.

Immigrant Intent & The E-3 Visa

Most people holding an E-3 visa or pursuing an E-3 are aware of the concept of ‘immigrant intent’ and how the E-3 doesn’t tolerate immigrant intent.  

Loosely speaking, immigrant intent is the intent to make the US your permanent residence or apply for a green card in the US, or to engage in activity in the US that would suggest you think you are a permanent resident in the US.  

The fact that the E-3 does not tolerate immigrant intent is not unique to the E-3, as it actually applies to most visas, aside from the H-1B and L-1. Immigrant intent is analyzed when entering the US and when applying for the visa.  The analysis of immigrant intent at entry goes something like this:

Do you have the intent at the time of entry to pursue a green card in the US, stay permanently in the US (either by pursuing a green card or overstaying), or engage in activity that is not in line with your visa and would only be acceptable if you had a green card?”  

The analysis of immigrant intent pertains to that entry. It doesn’t pertain to a future intent or an intent to navigate a green card process via the immigrant visa route that requires an interview outside of the US. Likewise, the analysis when applying for a visa is very similar:

Does it appear that you intend to use that visa to enter the US and apply for a green card in the US or enter the US and make the US your home and engage in activity that is not permissible under the visa you’re applying for?” 

Further complicating the whole immigrant intent concept is that it is possible for your intent to change after you have physically entered the US, and if it does so and it is navigated properly, then it doesn’t violate immigration laws.

Let’s look at the two different ways of applying for a green card:

    1. Adjustment of StatusAdjustment of status is where an individual is in the US and they file an application (I-485) to ‘adjust’ their status from whatever status they currently hold (E-3 for purposes of this post) to permanent residency status (green card).  You cannot file an adjustment of status unless you have filed, or will concurrently file, an immigrant petition (I-130 in the family context and I-140 in the employment context).Depending on the green card category and route, you might only be able to file an immigrant petition and have to wait for your place in line (known as your ‘priority date’) to become current as per the Visa Bulletin before you can file an adjustment of status.  Or, in some cases, your category/route might be ‘current’, meaning there is no wait in line, and you can file the adjustment of status application concurrently with the immigrant petition.The filing of an immigrant petition (I-130 in the family context or I-140 in the employment context) is not an ‘adjustment of status’ and it is technically not a ‘green card’ application per se, rather it is a petition that is being filed on your behalf by someone else (family member or employer) so that you can eventually pursue a green card.  This is an important concept to understand if your priority date is not current, meaning you are faced with a wait. When you are eligible to pursue the green card you can pursue it via an adjustment of status application, if you’re in the US and there are no underlying immigrant intent issues, or via the immigrant visa route, which is the second way of applying for a green card.
    2. Immigrant visaThe only way to pursue and obtain an immigrant visa is with an approved immigrant petition.  An immigrant visa is a visa obtained at a US Consulate outside of the US for purposes of making the US your permanent home.  If you are an Australian citizen and you’re pursuing an immigrant visa, you attend an interview at the US Consulate in Sydney, as that is the only US consulate in Australia that processes immigrant visas.  After obtaining an immigrant visa, you use the visa to enter the US and a green card is sent to your residential address within several months of entry. Unlike pursuing a green card via the adjustment of status route, there are no immigrant intent issues.  However, similar to the adjustment of status route, you would still have an immigrant petition (I-130 or I-140) filed on your behalf in the US.

Why Would One Choose The Immigrant Visa Route Over The Adjustment Of Status Route?

One might choose the immigrant visa route over the adjustment of status route for several reasons.  

    1.  As mentioned above, there is no ‘immigrant intent’ issue when pursuing a green card via the immigrant visa route via the adjustment of status route.  There’s no intent because when you are pursuing a green card via the immigrant visa route you have to attend an interview outside of the US in order to obtain a green card. That means that when you enter the US on an E-3, you do not have the intent to obtain the green card in the US via the adjustment of status process since you’re specifically requesting to obtain it at a Consulate outside of the US therefore you will have to leave and do that.
    2. If you are in the US on any visa other than the H-1B or L-1, you cannot travel after submitting an adjustment of status application until you receive a temporary work and travel permit, which takes 6 months to arrive after submission of the adjustment of status application. If you are pursuing an immigrant visa, you can travel in and out of the US while it’s pending without the need for a work/travel permit (it’s not possible to obtain anyway via the immigrant visa route).
    3. The third point is sort of tied into the first two points and it has to do with immigrant intent. If you want to apply for a green card in the US via the adjustment of status process and you need to be concerned about immigrant intent, you have to delicately navigate the process and ensure that you follow certain timing protocols. One of the biggest timing protocols is that you cannot submit the adjustment of status application less than 90 days after your last entry to the US.  The reason for this is that the USCIS Policy Manual states that if an individual engages in conduct contrary to the intent of their visa within 90 days of entry, the officer may analyze whether or not there was a misrepresentation at the time of entry. This basically means that if you do want to pursue a green card via the adjustment of status route, because your intent changed after entry, you have to wait at least 90 days after entry before submitting the application. Since you have to wait 90 days before submission and it takes 6 months to obtain work and travel authorization, this means you will effectively be stuck in the US for at least 9 months since your last entry to the US.

Why Might Someone Choose The Adjustment Of Status Route Over The Immigrant Visa Route?

One might choose the adjustment of status route over the immigrant visa route because it is slightly less bureaucratic and it can be processed directly in the US.  It is less bureaucratic because the immigrant visa route requires multiple steps and dealing with 3 different quasi organizations as follows:

    1. Submission of the immigrant petition in the USCIS
    2.  Upon approval of immigrant petition, the case is transferred to the National Visa Center, which will require additional filings and documentation
    3. Upon compliance with NVC requirements the case is transferred to the US Consulate in Sydney where an interview is held.
    4. Upon approval in Sydney and receipt of immigrant visa stamp you must use the visa to enter the US as a permanent resident
    5. 2-3 months after arrival, green card arrives at your residential address.

In contrast, the adjustment of status requires you to deal only with the USCIS and it can be processed entirely in the US.  Unlike the immigrant visa route, if something goes wrong with the adjustment of status process, there is an appeal process. Additionally, one does not obtain a work/travel card if pursuing an immigrant visa process.

In conclusion, immigrant intent is a real concept, but it needs to be better understood by E-3 visa holders.  It is not a bar to applying for a green card from an E-3 and it does not bar one from seeking a green card via the adjustment of status process if navigated properly.  While it is true that immigrant intent issues can more cleanly be wiped away when pursuing a green card from an E-3 via the immigrant visa route as opposed to the adjustment of status route, it doesn’t mean that one can’t do an adjustment of status from an E-3 whether it’s through family or employment.  Your ‘intent’ can change after entry and if that does happen and at least 90 days have elapsed and you can remain in the US without traveling for at least a half dozen additional months, you might be able to overcome the concept of immigrant intent and file an adjustment of status application.

USCIS updated Chapter 3 of Volume 8, Part J of the Policy Manual on May 15, 2018, which discusses adjudicating inadmissibility based on a misrepresentation. Specifically, the manual acknowledges that the State Department’s 90-day rule is an analytical tool for consular officers, not a binding principle or decision. Furthermore, the manual clarifies that the rule is not binding on USCIS. Those adjudicators “should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.

Despite this language, practitioners should be prepared for USCIS officers to ask questions about potential misrepresentation when a client has engaged in conduct inconsistent with nonimmigrant status within 90 days of entry. Such conduct could include entering as a tourist and then working without authorization or marrying a U.S. citizen and applying for adjustment of status.

Clients should be prepared to show that they did not misrepresent their intentions when they entered or applied for a nonimmigrant visa. For example, they should be prepared to explain why the decision to work or marry arose only after they entered the country based on new circumstances.   

If you have further questions or want us to give you customized counsel pertaining to your specific case, please schedule a consultation request to speak with one of our reputed E-3 visa lawyers at Lightman Law Firm.

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Douglas Lightman

The award-winning Lightman Law Firm was founded by Douglas M. Lightman, Esq. Mr. Lightman has extensive experience in immigration law and international matters through both work and personal experience. Prior to forming Lightman Law Firm, Mr. Lightman spent several years at an international tax consulting and compliance firm where he focused on international tax consulting and cross border transactions. Mr. Lightman is a United States trained lawyer who received his law degree from Brooklyn Law School and is a member in good standing of the Bar of the State of New York and a member of the American Immigration Lawyers Association, the world's largest organization of immigration lawyers. To discuss your possible case with Mr. Lightman 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.