As announced on January 15, 2016 by the Department of Homeland Security (DHS), there are some updates being made to the E-3 nonimmigrant classification as of February 16, 2016.
Due to the arcane language often used by the DHS and the complexity of the US immigration system, there seems to be widespread confusion and misunderstanding regarding what these changes mean. Below is an attempt to decipher/translate what these new rule changes mean.
We have copied the language the DHS used to convey the changes and provided a translation as to what it means.
Please note that we are discussing only changes to the E-3.
DHS statement:
DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.
Lightman Law Firm’s explanation:
This sounds more interesting than it really is. What the DHS is saying is that E-3 classification holders can work in the US without applying separately for a work authorization card.
Many of you, especially those currently in the E-3 classification, might be scratching your head and wondering how this differs from what was previously the situation.
The truth is it’s not a change as there has never been a time when a principal E-3 classification holder had to separate apply for a work authorization card. The change is that the DHS has finally gotten around to memorializing the fact that it’s not necessary in the immigration regulations.
DHS statement:
DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
Lightman Law Firm’s explanation:
A lot of people have interpreted this to mean that a Labor Condition Application (LCA) will no longer be needed for an E-3. This is not what this means.
An LCA is still required for all E-3s. What this means is that if you are in the US in the E-3 classification and you have submitted an extension petition in the US with the USCIS, you can continue working for your employer in the E-3 classification even if your extension petition remains pending beyond the expiration of your underlying E-3 classification, as long as the extension petition was submitted before your E-3 classification was set to expire.
You can continue working beyond the expiration of your E-3 classification in this scenario while the E-3 petition is pending for up to 240 days. If for some awful reason your E-3 petition is still pending 240 days after your E-3 classification has expired, you can remain in the US, but you must stop working.
It’s important to understand that the DHS always allowed E-3 individuals to apply for extensions of stay in the US. The only difference is that previously, while you could apply in the US for an extension of stay with the USCIS as long as it was submitted before your current stay expired, you could not work after your stay expired until the extension petition was approved.
The law was changed to be more in line with other work visa classifications, which allow an individual to continue working in an extension of stay scenario for up to 240 days after their current stay expired as long as the extension of stay petition was filed before their current stay expired.
Note that if you do an extension of stay in the US through the USCIS, you will not get a visa stamp in your passport. This is important to understand because if you need to travel outside of the US after the extension of stay petition has been submitted you will basically have to lodge the same application with a US Consulate in order to obtain a visa stamp before your return to the US.
While this update is definitely a benefit, it still may be more efficient and less stressful to extend via a US Consulate.
DHS statement:
Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
Lightman Law Firm’s explanation:
This is a lot like the first statement. DHS is saying that while in practice one was allowed to extend their E-3 stay in the US or change to an E-3 status in the US, it was never officially memorialized in the regulations. DHS is amending the regulations to officially recognize something that was allowed since the E-3 was introduced.
Conclusion
The only true update that has occurred in regard to the E-3 classification is that if you are extending in the US via a petition submitted to the USCIS, you can continue working beyond the expiration of your current E-3 classification while your extension petition is pending for up to 240 days, provided that you submitted the extension petition prior to the expiration of your initial E-3 stay.
As mentioned above, in this scenario, if you ever wanted to travel internationally you would still need to get a new visa stamp.
For more information about the E-3 visa or work visas in general, please contact the award-winning Lightman Law Firm of New York at one of the following: 212-643-0985; email us; or submit a contact form.
Lightman Law Firm was recently honored as New York’s 2015 Immigration Law Firm of the Year by Acquisition International. Additionally, founding attorney, Douglas Lightman, was named a “Rising Star” by SuperLawyers.com. Lightman Law Firm also carries a 4.9 rating on Google Reviews.
