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Potential Issues with nonimmigrant workers admitted in E-3 status

By July 24, 2017May 18th, 2021H-1B and E-3 Visa, Immigration

If you are an Australian national seeking to live and work in the United States, the E-3 visa may be an excellent option. The E-3 classification allows for the temporary entry of Australian professions to perform services in a “specialty occupation” for a U.S. Employer. The classification is like an H1-B visa, but has several key benefits over the H1-B, including the ability to renew the visa indefinitely. The visa also does not have a CAP like H-1B and spouses of E-3 visa holders can obtain work authorization.  If you are considering applying for an E-3 visa, there are a number of factors that may affect E-3 visa holders that you should keep in mind.

The Labor Certification Application and Visa Validity Dates May Lead to Inconsistent Admission Periods

In order to obtain an E-3 visa, the applicant must present a certified Labor Condition Application (“LCA”) issued by the Department of Labor. A Labor Condition Application (Form ETA 9035) is an application submitted to the Department of Labor providing specific information about the employer, the job for which the E-3 visa is sought and the wage that the petitioner commits to pay to the E-3 employee. It is a requirement that a certified Labor Condition Application be included with the application at the time of the E-3 filing.

An LCA for an E-3 may only be certified for a maximum period of two years, and the validity period of an E-3 visa should not exceed the validity period of the LCA. However, consular posts sometimes issue visas for a period of two years from the date of the application rather than from the date of the approved LCA. To further complicate matters, CBP officers may issue I-94s with admission periods ranging from one year from the date of entry, two years from the date of entry, up to the validity date of the E-3 visa (which should be, but often is not, the same as the validity date of the LCA), or up to the validity date of the LCA. These inconsistent applications from different government agencies can make tracking your employment authorization period and immigration status confusing.

CBP officers generally do not consider the validity period of the LCA when issuing I-94s. If you recently entered on an E-3, it is important check if your admission period (the date issued on your I-94 which denotes your legal status in the U.S.) extends beyond the validity period of your LCA or your E-3 visa. If so, you may not be authorized to work for the entirety of the admission period on E-3 status, which may cause unforeseen issues regarding the maintenance of the E-3 status. You should aim to file a new LCA and apply for the E-3 visa renewal prior to the expiration of the underlying LCA to prevent a break in work authorization or issues with maintaining valid status.

Issues with Filing Extensions of Status with USCIS

If you plan to file an extension of status with USCIS (not recommended), it is important to note that premium processing is not available for the E-3 visa classification. Although individuals in E-3 status may receive an automatic extension of work authorization with the same employer based on a timely filed application for an extension of stay, this work authorization only lasts for 240 days. If the extension has not been approved within 240 days from the expiration of E-3, status, work authorization will cease.

E-3 visa is not portable

The E-3 visa does not share the H-1B’s portability.  With an H-1B petition, if you are in the U.S. working in H-1B status and you want to change employers, you can move to the new employer as soon as you receive a receipt notice showing that you filed a new H-1B petition. E-3 does not permit this and due to unavailability of premium processing for E-3s, filing for an extension of stay with a new employer while maintaining work authorization is not feasible. Therefore, if the E-3 visa holder wishes to change employers, he will need to leave the U.S. and apply for a new E-3 visa pursuant to an LCA certified for the new employer, and reenter the U.S. using the new visa to begin working for the new employer.

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