The most likely beneficiaries of this situation will be those needing to amend their current E-3 visa or change employers from within the U.S. without traveling abroad to obtain a new visa.
Typically, Australian citizens in the United States working under an E-3 visa are tied to a specific role and a specific employer. If they move into a position that is considered a “material change” from the position reviewed in the original E-3 visa application, they are required to file an I-129 petition to amend their current E-3 status or apply in person for a new E-3 visa application at a U.S. Consulate outside of the United States.
Similarly, if the individual E-3 visa holder wishes to change employers, they are required to file an I-129 petition to change employers or in some cases apply for a new E-3 visa through a U.S. Consulate outside of the United States.
Under this scenario, the main problem has historically been the timing. The E-3 visa holder cannot enter the new position or start working for the new employer until the I-129 petition or E-3 visa application has been approved. Previously, without premium processing, most E-3 visa holders would travel abroad and attend a visa interview at a U.S. Consulate to change their employer or amend their E-3 visa as this option was much faster than waiting 6 for an I-129 petition to be processed. Fortunately, with the option to opt for premium processing, many E-3 visa holders will have more flexibility to change their position or change their employers in a reasonable timeframe.
For any international travel occurring AFTER a USCIS petition, the individual may be required or recommended to apply for a new E-3 visa at a U.S. Consulate on their first international trip outside of the U.S. U.S. Custom and Border Protection (CBP) provided guidance that an E-3 visa holder with a valid visa may be allowed to leave and return to the the U.S. on that current visa if they have an approved I-129 Petition before departing. The individual must present both their E-3 visa and I-129 approval upon entry. It may depend on an individual’s specific circumstances as to if this is applicable to them or advisable.
Change to Non-Immigrant Status
In less common situations, Australian citizens who are in the United States in valid status with a visa, may be able to change their status from within the U.S.
For example, if someone is in the U.S. on an F-1 student visa and they receive a job offer that meets the E-3 requirements, it may be appropriate to file an E-3 petition to change their status so that they can start a new job. Without premium processing, this was not feasible as the standard processing times were several months and the applicants could not start their new jobs until the E-3 petition was approved by the USCIS. With the premium processing option now available for E-3 petitions it means that many individuals can obtain E-3 status from within the United States in a reasonable amount of time.
Also, there are some rare situations in which an individual may need to change from E-3 status to another status at the end of employment with their current employer or through terminating employment.
For example, if an individual needs more time in the U.S., it may be appropriate to file an I-539 Application to change to B visitor status. This would be done to facilitate a longer period in the U.S. for that individual to wrap of their affairs before
Please keep in mind that it is not possible to change non-immigrant status if the individual initially entered the United States under the ESTA (Visa Waiver Program).
Extension of Non-Immigrant Status
In many situations, individual E-3 visa holders who are employed in the United States choose to extend their E-3 status through a petition with the USCIS instead of applying for an E-3 visa renewal at a U.S. Consulate. This is becoming more and more common with numerous COVID-19 related travel restrictions globally.
When filing the extension of status, the USCIS automatically grants an extension of status for 240-days. Typically, as long as the extension of status petition is filed before the original E-3 status expires, the individual is “covered” and can remain living and working in the United States. If the extension has not been approved by the 240-day point, they would lose work authorization. Now, with the availability of premium processing, E-3 visa holders can guarantee that their cases be processed prior to losing any work authorization.
Please keep in mind that while the USCIS has the authorization to extend, change, or amend someone’s E-3 status, the actual E-3 visa label inserted into a passport can only be issued by a U.S. Consulate outside of the United States. A valid visa and valid passport are always required for international travel.
For any international travel occurring AFTER a USCIS petition, the individual may be required to apply for a new E-3 visa at a U.S. Consulate on their first international trip outside of the U.S.
USCIS Premium Processing Service for E-3 Petitions
Starting on February 24, 2021, The U.S. Citizenship and Immigration Service (USCIS) announced that they would immediately expand their premium processing service for E-3 petitions. This will greatly assist Australian citizens who are in the United States seeking to apply to amend their current E-3 visa, to change their U.S. employer, to change their status, or to extend their status from within the United States.
Premium processing provides expedited processing for various visa classifications when filed on Form I-129 with the USCIS. When utilized, the USCIS guarantees processing within 15 calendar days as opposed to a much slower standard processing. Currently, with E-3 petitions, standard processing can take up to 2-8 months. The USCIS filing fee for the premium processing service is currently $2,500 USD. Note that this does not include the filing fees for the I-129 to file the E-3 Petition.
Have Questions about E-3 Petitions and Premium Processing?
We are very pleased that the Administration has finally extended the option to utilize premium processing service to E-3 visa holders. Our team of U.S. lawyers and immigration experts would be happy to discuss E-3 petition options utilizing the premium processing option. Please contact Worldwide Migration Partners for a consultation or to discuss your specific situation.
About The Author
Melissa Vincenty is a US attorney, an Australian migration agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 20 years of experience in migration law, including practising at the world’s largest US immigration firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
