The E-3 Visa for Australian Professionals

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Today we write to you about a new visa opportunity that is strictly for Australian nationals.  It is called the E-3 visa and it is for professional employment in the United States.  The visa is good for two years and can be renewed indefinitely.  Basically it must be shown that a US employer is sponsoring an Australian national for a professional position which normally requires a University degree.  The Australian national must show that he or she possesses the required degree.  A benefit to this status is that it can be used as an alternative to the H-1B (the primary professional visa) which is subject to numerical caps and frequently is used up early.  Another benefit is that the Australian national’s spouse can obtain an unrestricted work permit while his or her spouse is working in the US with an E-3 visa.  This visa can be obtained at a US consulate abroad or one can apply for change to E-3 status in the United States.  Finally, the E-3 visa does not carry with it the very expensive filing fees associated with the H-1B (which could be up to $2,190).  There is an annual limit of 10,500 new visas per year.  However, since only Australian nationals can apply for this visa, it remains to be seen whether the numerical limit will ever be reached before the end of the fiscal year.  Please also see the US immigration press release regarding this new status.

What is a Priority Date and what does it mean to me?

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Immigration is basically a quota system.  For each category of immigrant visas, there is a quota allotting the number of visas that can be used in any given fiscal year.  There are two main categories and several sub categories beneath them.  They are family and employment.  For the most part, the closer the family relationship or the higher educated the employee, the higher their ranking will be in the quota system.  For example, the unmarried adult child of a US citizen currently has about a four and a half year backlog, while the sibling of a US citizen has an eleven year backlog.  To give an example in the employment based aspect, an outstanding professor or researcher has no backlog while a professional holding a bachelor’s degree has four and a half year backlog.  This system can be tracked on line by viewing the State Department’s Visa Bulletin.  It is important to plan ahead properly in order to deal with the system of priority dates.  An attorney will figure a way, if possible, to keep his or her client present in the US in valid non-immigrant status until such time as their priority date becomes current, thereby allowing them to apply for adjustment of status to lawful permanent resident.  For certain countries which send many immigrants to the US, there are even greater backlogs separate from the rest of the world.  Those countries are China, India, the Philippines and Mexico.  There are some borderline cases where an argument can be made (but planned from the beginning) to include a client in a higher preference category.  Earlier this year, this did not seem to matter in the employment based preference system because there were few, if any, backlogs.  Now, the backlogs are significant and it is crucial to take these factors into account before embarking on a new case.

What do you do when the government won’t respond?

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We receive many calls from frustrated applicants to the immigration process that have had their cases "lost" in the system, cannot find out what is happening with their case or have a case that has gone beyond the normal processing time frame.  Fortunately, US immigration allows you to track most cases on the Internet at USCIS On Line Case Status Service.  This has been a vast improvement over the old days.  You can even set up an account whereby they will e-mail you when there is action (good or bad) taken on your case.  This is not yet possible with overseas Consulates.  However, many are responsive to e-mails from applicants or attorneys (see links to US Consulates).  Customer service is an important goal of US Immigration, but it is not perfect.  If a case has taken 30 days or longer than the normal processing time (see USCIS Processing Times) you can call their customer service toll free number.  An operator will take your information and promise a response within 30 days.  Unfortunately, quite often, there is a one line non-responsive letter that you will receive in the mail to the effect that the case is under review and a decision will be rendered shortly.  In these types of frustrating cases, an attorney can be of assistance.  Generally, the US Consulates seem to be open to communication with attorneys.  Also, if an attorney is a member of the American Immigration Lawyers Association, he or she has an added method of obtaining a response to a pending case.  AILA (its acronym) has staff members in place whose job it is to have direct contact with officials at the various immigration offices to obtain reasonably responsive answers and to resolve simple and even complex problems.  As an attorney, I use this resource quite often and have found it to be very helpful.  In addition to this, many local immigration offices have privileges for attorneys only to meet in person and inquire about or resolve pending matters.  Aside from our existing clients, we have taken on a number of new clients whose only task for us is to use our resources to facilitate a resolution to their long pending case.  Nothing is impossible.

Options for Fiancées – The K-1 Visa

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Now that our readers are familiar with the process of immigration through marriage, we will discuss pre-marriage immigration options.  Consider the scenario.  You are a United States citizen, you are engaged to a person who lives outside the United States and who otherwise cannot obtain a visa in the United States.  You could get married abroad and have your spouse process for his or her permanent residence at the United States Consulate in their home country.  However, you may feel that you would like for your fiancée to take the opportunity to experience life with you in the United States before you marry.  In this case, you would opt for the K-1 fiancée visa.  This process requires that you have seen your future spouse in person within the past two years and show proof of a relationship, such as phone records, e-mails, etc.  The United States citizen files a petition in the United States with the required information and evidence.  When the case is approved, the United States Consulate in the foreign fiancée’s home country is notified.  Additional paperwork, a medical exam and an interview are completed at the Consulate.  Once the foreign fiancée is issued his or her K-1 visa, he or she has four months in which to enter the United States.  Once the foreign fiancée enters the US, the couple has 90 days in which to marry, otherwise the foreign fiancée must return to his or her home country.  Once married, the couple applies for the adjustment of status (green card) for the foreign spouse.  The green card process through marriage is discussed in more detail in the prior day’s article.

Immigration through marriage

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Since the first comment to our blog came from a client who obtained her immigration status through marriage, it seems a fitting category to discuss.  Generally, when a foreign national marries a United States citizen, that person can obtain permanent residence (otherwise known as green card) status through this process.  If the foreign national is in the United States, the process is known as adjustment of status and if they are outside of the United States, they go through a process known as Consular Processing at the United States Consulate in their home country. 

Since there is a great deal of fraud in these types of cases, we carefully screen potential clients to make as certain as possible that they are in a legitimate relationship for love as opposed to marrying a "friend" who is "helping them out".  Since we have handled these cases for many years, we are able to advise our clients about the process with a great deal of experience and insight into what the United States Immigration Service is looking for.  We first gather documentation and information from our clients and prepare all of the various applications and forms.  We then assemble these completed forms and evidence into a package that is filed with the United States Immigration Service. 

Once the case is filed, we provide our clients with the original receipts as well as information and suggestions on how to prepare for their upcoming interview.  This is done so that proof of the validity of their marriage can be gathered over time rather than scrambling at the last minute.  Before the interview, we meet to review the evidence and go through a dry run of the interview process.  In most cases, we attend the interview with our clients to make certain that the process is smooth and that our clients obtain the benefits for which they’ve applied.  The process can seem deceptively simple.  It does not have to be complicated if one prepares properly.  However, there are pitfalls along the way that an attorney looks out for from the beginning by knowing what questions to ask and how to best proceed.  For each interview, the government allots a half hour time frame.  Most of our cases are accomplished within 15 to 20 minutes because of the level of preparation that goes into each case prior to the day of the interview.  We will post further discussion about this process in the future.  In the meantime, those with questions may feel free to comment and we will elaborate on the process.