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E-3 Extension of Status in the U.S.: Three Essential Things to Keep in Mind
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An experienced HR professional, Katie, with years of experience dealing with H-1B requirements assumed that the E-3 extension procedure and extension requirements would be the same as H-1B because E-3 requirements are largely similar to that of the H-1B. Her company has an Australian national working with them in E-3 status, and his status is due to expire in 4 months. Her company has been planning to file an extension petition for the E-3 employee with USCIS instead of the asking the employee to travel outside the U.S. and renew the E-3 visa at a U.S. Consulate abroad.

Key Points

1. While filing E-3 extension petitions with USCIS, U.S. Employers must make sure to file sufficiently ahead of time to ensure that the employment of the foreign national on E-3 classification is not disrupted.


2. The automatic 240-day extension of work authorization does not apply in the case of E-3 extension of stay petition with USCIS.

3. USCIS Premium Processing Service is not yet available for the E-3 visa classification.

When she made inquiries with her company’s immigration attorney about the E-3 extension procedure she realized that the E-3 extension procedure involved significant and peculiar considerations that could affect their decision to file an extension instead of doing consular processing.

So, what are the key points to be considered that are peculiar to E-3 extension petitions filed with the USCIS?

The E-3 visa classification applies exclusively to Australian nationals temporarily coming to the United States to perform services in a specialty occupation. Unlike most other temporary employment visas, first-time E-3 visa applicants who are outside the U.S. must apply directly at a U.S. consulate for an E-3 visa stamp and do not require prior petition approval by USCIS. Furthermore, Australian nationals who are in the U.S. in E-3 status may either request an extension of stay by either having the employer file an extension of stay petition with USCIS inside the U.S. or can simply travel outside the U.S. and apply for a new E-3 visa at a U.S. consulate abroad.

Note: In this article, we focus only on the scenario where Katie and her company are looking to file an extension petition with USCIS, seeking an extension of stay of the E-3 visa holder in the U.S.

While planning to seek an extension of stay for an Australian national in E-3 status, employers must take the following key points into consideration to ensure that the foreign national can remain in the U.S. and avoid any unwanted breaks in the ability to work:


  1. Credentials Evaluation

    While filing the Form I-129 with USCIS seeking an E-3 extension, the E-3 employee must be able to show that he or she possesses the required U.S. bachelors or higher degree, or its equivalent, in the specific specialty to qualify for the E-3 classification. If the E-3 employee has a foreign degree, then a proper credential evaluation, properly evaluating the employee’s educational credentials, must be submitted with the E-3 petition.

    Oftentimes, Australian nationals who initially applied for an E-3 visa at a U.S. Embassy or Consulate in Australia may have only submitted their degrees obtained in Australia and may not have obtained a credentials evaluation.  Generally, a credentials evaluation is not absolutely required by U.S. Consular officers, particularly those in Australia, as they are more familiar with the Australian education system and are able to make fair assessments on equivalency.

    It is therefore necessary to review the documentation of the E-3 foreign national ahead of time to ascertain whether an appropriate credentials evaluation has already been done to establish the foreign national’s eligibility to seek an E-3 classification. Where a suitable credential evaluation is not available, steps must be taken to obtain one and submit it to the USCIS as part of supporting documentation along with the Form I-129 seeking extension of stay.


  1. Automatic 240-Day Extension of Work Authorization

    Current regulations provide that if USCIS receives a timely filed extension of status petition for those in H, L, O, E-1 or E-2, P, R, A-3, G-5, J-1 or TN status, then the beneficiary may continue his or her previously approved activities in the U.S., including previously authorized work, for a period of up to 240 days beyond the date of the expiration of the authorized period of stay or until USCIS makes a decision on the extension petition. In order to be eligible, the foreign national must not have violated the terms of his or her status, and he or she must continue to meet the basic eligibility requirements of the visa classification.

    Unfortunately, this automatic 240-day extension of work authorization does not apply to foreign nationals in E-3 classification. As a result, an E-3 employee cannot work beyond the period of authorized employment even if a timely filed extension petition is pending for adjudication with USCIS.

    Thus, it is absolutely necessary for employers that are planning to file an E-3 extension petition with USCIS to make sure that the extension petition is filed sufficiently ahead of time. This will ensure that the petition is approved before the current work authorization expires and that the employment of the foreign national in E-3 status is not disrupted.


CASE SCENARIO

Luke is an Australian national who is working in the U.S. in E-3 status. His status is set to expire in 4 weeks. He was planning on leaving the U.S. and going to a U.S. Consulate abroad to get a new E-3 visa. However, because of an unexpected emergency, he is unable to leave the U.S. What can Luke’s employer do?

Luke’s employer must file a Form I-129 in order to extend Luke’s E-3 status so that he does no accrue any unlawful presence and does not fall out of status.  At the same time, however, he must stop working when his E-3 status ends and cannot commence/continue working until the E-3 extension application is approved. If the petition does take a long time to be adjudicated or there are delays associated with a Request for Evidence, Luke can always take a trip outside to get the E-3 visa at a U.S. Consulate later if his circumstances preventing him from traveling changes.

 

  1. No Premium Processing

    Under USCIS’s Premium Processing Service, U.S. employers may seek expedited processing of certain work visa petitions like H-1B, L-1 etc. filed by using the Form I-129 by filing Form I-907 and paying an additional fee of $1,225. The Premium Processing Service guarantees a response from USCIS (either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation) within 15 days. If USCIS cannot issue a response within that time, they must issue a refund.

    TIP
    Dependents of E-3 visa holders in E-3D status are eligible to work but must apply for an Employment Authorization Document. Filing sufficiently ahead of time also ensures that the dependent in E-3D status also has enough time to file an extension for their Employment Authorization Document so that they too will not have an interruption in employment.

    At present, however, the Premium Processing Service is not available for the E-3 visa classification. As a result, in conjunction with the fact that the automatic 240-day extension of work authorization also does not apply to foreign nationals in E-3 status, US employers must plan and ensure that the E-3 extension petitions are filed sufficiently ahead of time.


Conclusion

Realizing that the E-3 extension filing with USCIS involved a few significant and peculiar considerations, Katie immediately set out to assemble documentation relevant for the E-3 extension filing. Simultaneously, she also initiated a consultation with her company’s immigration attorneys to review their situation and determine whether an extension of stay filing with USCIS would be appropriate in their situation given that they were left with only 4 months of authorization left on the E-3, and to explore other suitable alternatives that may be available to them in their situation to avoid any undesirable disruptions of work.

Although many of the E-3 requirements are similar to that of H-1B, the special circumstances that arise when filing an extension of status for E-3 highlight the differences in the two visa classifications. Employers who are planning to file an extension petition with USCIS seeking extension of stay of an E-3 employee must therefore plan ahead to ensure that the extension petitions are timely filed to avoid any undesirable consequences.

Contact VisaPro if you need any assistance in filing for, or have any queries related to, E-3 extensions. Our experienced attorneys will be happy to assist you.


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