Dual Intent 2016 – E-3 Visa

Some nonimmigrant visas allow individuals to enter the US with the intention of eventually becoming permanent residents. These dual intent visas are known.

Australian nationals working specialty occupations may apply for an E-3 visa; this status does not permit dual intent and, should they attempt to secure green card status via adjustment of status route too soon after arriving on E-3 status in the US, may result in their being denied.

What is an E-3 Visa?

The E-3 Visa is an employment-based visa designed to permit US employers to hire Australian citizens who possess skills in specialty occupations. This visa type was made possible as a result of the Australia-United States Free Trade Agreement. Employers seeking E-3 status must file Form ETA-9035 Labor Condition Application either with the USCIS or consulate and once approved they may grant up to two years of E-3 status at once; also their spouses are eligible for work authorization in the United States.

E-3 nonimmigrant visa holders differ from H-1B workers in that they do not need to remain with their original employer during their entire stay in the U.S. However, should an E-3 worker wish to switch jobs during her E-3 stay she must first secure new labor certification and submit a petition with U.S. Citizenship and Immigration Services before changing employers.

Additionally, the E-3 visa does not accommodate for dual intent; an individual seeking admission to the United States in E-3 status must overcome the presumption that she intends to become a permanent resident upon entry to overcome this disadvantage; H-1b, L and O employment-based nonimmigrant categories provide this same benefit and it stands as one of its greatest drawbacks.

E-3 Visa Qualifications

E-3 visa applicants must meet several criteria in order to secure one, such as having a job offer from an employer in the US, providing proof of qualification such as academic credentials or licenses, etc.

At an interview at a US Embassy office, an official will assess your work experience and your nonimmigrant intent. At this interview, it’s essential that no permanent plans to reside in the US are revealed; rather, be clear in communicating your intention of returning home after your contract ends.

As a rule, E-3 visa holders are permitted to remain in the US for two years at a time and can request extensions in two-year increments; however, there is an annual cap on how many initial E-3 visas can be granted and proof of an LCA on file must also be available before seeking extensions or amendments for your visa.

An E-3 visa typically requires that an applicant possess at least a bachelor’s degree; however, in exceptional cases professional experience may trump this requirement. An experienced immigration attorney can help determine whether you qualify for this type of visa given your individual circumstances; it could have significant ramifications on how long you remain in the US as well as extensions of employment authorization authorizations.

E-3 Visa Duration

E-3 Visa holders have until their employment ends or their visa expires to remain in the United States, as E-3 visas are valid until employment ends or visa expires. This is because E-3 visas are granted for periods that do not extend past Labor Condition Applications’ (LCA). Unlike other employment-based nonimmigrant visas, an LCA can be extended in two year increments by Premium Processing; thus expediting its validity.

To maintain legal E-3 status, it is essential that you possess both a valid passport and copy of your LCA. Should your employment change, an amended petition and LCA must be submitted or an E3 visa applied for at a US consulate.

Even though its requirements may be less stringent than H-1B visas, E3 Visas can still be difficult to secure. Candidates should consult with an AILA member attorney and ensure they submit all of the necessary documentation in order to apply for one. Items necessary include valid job offers as well as proof that an employer obtained LCA certification but could not find qualified US workers for the position; additionally E-3 visa holders must demonstrate they hold at least a bachelor’s degree and possess skills relevant to performing that specialty occupation; furthermore they must show they will receive fair salaries while living here in America.

E-3 Visa Renewal

The E-3 visa has several significant advantages. One benefit is its renewal eligibility indefinitely as long as your sponsor’s Labor Condition Application remains valid; additionally, no interview at US Embassy is necessary making working in America easier for Australian nationals.

However, E-3 status does have its drawbacks; most notably it does not allow dual intent – admission of nonimmigrants who intend to apply for permanent residence – which is the main downside compared to H category visas that provide this feature.

To remain eligible, an E-3 must either leave the United States and apply for a change of status at one of the US Embassy or Consulates overseas or have their employer submit an extension petition with USCIS before their current visa expires – usually the latter option provides greater employment continuity without gaps.

Processing times will depend on interview availability at an Embassy or Consulate. Due to pandemic-related delays and limited interview availability, it is vital that applicants plan ahead. It is also wise to review your supporting documentation carefully to avoid unexpected administrative processing or requests for more evidence delays.