E-3 Extension of Status In The U.S.:

Introduction

The E-3 Visa allows Australian nationals to accept employment in the U.S. in “specialty occupations.” One of the benefits of the E-3 visa is the ability to circumvent the USCIS petition process common with H-1B visa, and be able to apply directly for an E-3 visa at a U.S. Consulate.

For Australians already present in the U.S. in E-3 status, it’s essential to understand the process to extend E-3 status in the U.S. without having to travel to a U.S. Consulate abroad.

1. E-3 Extension of Status In The U.S.

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.

Australian nationals who are in the U.S. in E-3 status may request an extension of stay by either having the employer file a petition with USCIS inside the U.S., or can travel outside the U.S. and apply for a new E-3 visa at a U.S. consulate abroad. When filing an extension of stay for an Australian national in E-3 status through USCIS, 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.

2. Credential 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.

Frequently, Australian nationals who initially apply for an E-3 visa at a U.S. Embassy or Consulate in Australia are not necessarily required to obtain a credential evaluation as it is not absolutely mandated by U.S. Consular officers, particularly for those who are educated in Australia. Consular officers are generally familiar with the Australian education system and are able to make fair assessments on equivalency.

On the other hand, USCIS requires that foreign education be evaluated to determine the correct equivalency. It is therefore necessary to review the education documents of the E-3 foreign national ahead of time to ascertain whether an appropriate credential evaluation has already been secured. Where a suitable credential evaluation is not available, steps must be taken to obtain it and submit to the USCIS as part of supporting evidence along with the Form I-129.

3. Automatic 240-Day Extension of Work Authorization

Current regulations provide that, if USCIS receives a timely filed extension of status petition for those in E-3 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.

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 is because Premium Processing IS NOT available for E-3 petitions.

Under USCIS Premium Processing service, U.S. employers may seek expedited processing of certain work visa petitions such as H-1B, L-1, etc. by filing Form I-907 and paying an additional fee of $1,440. 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.

Filing sufficiently ahead of time will ensure that the petition is approved before the expiration of the 240 days. E-3 extension of stay petitions may be filed up to 180 days in advance of the expiration of the current I-94.

TIP
Dependents of E-3 visa holders in E-3D status are eligible to work but must apply for an Employment Authorization Document. Filing ahead of time also ensures that the dependent in E-3D status has enough time to file an extension for their Employment Authorization Document.

My Case Scenario
Luke

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 can file a Form I-129 in order to extend Luke’s E-3 status. Because of the 240-day automatic extension, he will be able to continue working as long as the E-3 petition is pending. 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.

Conclusion

Employers who are planning to file an extension petition with USCIS seeking extension of stay of an E-3 employee must plan ahead to ensure that the extension petitions are timely filed to avoid any undesirable consequences.

VisaPro local immigration lawyers will be happy to assist you if you have any questions regarding the US E-3 visa, or need help in filing the E-3 extension of stay. Schedule A Free Consultation Today >>