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I am on an E-3 visa and my I-94 extends past my Labor Condition Application end date. Can I remain in the U.S. and work?

By July 7, 2020May 20th, 2021H-1B and E-3 Visa, Immigration
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The E-3 visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  The visa is available to nationals from Australia only and is very similar to an H-1B visa.  This visa category requires that the beneficiary (the foreign worker) have a Bachelor’s degree, and the Petitioner (the U.S. company) can employ the worker for an indefinite period in 2 year increments.  Unlike the H-1B visa, the E-3 visa is not a dual intent visa. While the visa is subject to a cap, the cap has not ever been used. As such, the visa has regularly been available and is a great option for Australian nationals looking to work in the United States.

What is a Labor Condition Application?

An important part of the E-3 application is the Labor Condition Application (“LCA”), which is a form the U.S. employer must file with the U.S. Department of Labor. This form includes attestations the employer must make regarding working conditions and wages to be paid to the employee, as well information about the location(s) where work will be performed. The LCA also specifies the time period for employment. For E-3 visas, the employer can ask for 2 years maximum in each Labor Condition Application. After two years, if the employer wants to continue employing the E-3 visa holder, they must file a new Labor Condition Application.

What is an I-94?

As an E-3 visa holder, every time you enter the U.S. you will receive an I-94 which is your Arrival/Departure Record. The date on the I-94 governs your lawful status in the U.S. It is very important to check your I-94 after every entry, as there are frequently errors and if you remain in the U.S. past the end date of your I-94, you will begin to accrue unlawful presence.

My I-94 extends past my LCA end date. What does this mean?

This is a common problem for E-3 visa holders for the reasons described below. When you receive your E-3 visa, the visa should include an annotation with the end date of your LCA. However, this annotation is not always added. Additionally, the visa stamp may be issued for a 2-year period, but the 2-year period may not coincide exactly with the LCA dates. Finally, when you enter the U.S., the Customs and Border Patrol officer may grant you two years in E-3 status at each entry, as this is the time that is normally given to E visa holders. This means that it is often the case that E-3 visa holders have an I-94 that ends past their LCA end date. The important thing to remember is that even if your I-94 expires after the LCA expiration, your work authorization is governed by your LCA date, not by the I-94 end date. This means that you must keep track of the dates on the LCA and a new LCA must be certified by the Department of Labor if you want to keep working past the end date on the initial E-3. Keeping track of both the I-94 date and the LCA date is an important part of maintaining your status in the U.S. If your LCA or I-94 are close to expiring, you should speak with your employer and experienced immigration counsel prior to the expiration to determine what documents need to be filed to extend E-3 visa status.

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