Tag Archives: demonstrate residence abroad

E3 Visa & H1B Visa “Administrative Processing” Refusal at US Consulate

In general for most people once an potential employer sponsor in the US has agreed to hire a foreigner under the E3 Visa, H1B visa or L1 Visa, the hard part has been done. This also applies to the K1 Visa for Marriage.

As with the H1B visa and L1 visa, petitions and forms have to filed and approved at the USCIS and Department of Labor and with the E3 visa at the Department of Labor only, so a lot of the vetting has already been done. Then of course employers if they are planning to go through the time, expense and hassle of hiring a foreigner, they themselves are going to make sure most of the time, that the employer is a legitimate candidate with relevant experience and qualifications.

So going to the US Consulate interview, while in many ways seeming like a big deal to the candidate because of the formality, seriousness and security of the process, ends up being just a routine with at the most and most a few hours wasted in the room waiting. Therefore actually getting the E3 visa or H1B visa stamp in the passport is the last step in the process before flying to the US to begin their new career.

However for some unfortunate candidates it is not so simple and the process at the US consulate takes a lot longer under the title of “administrative processing” under condition 221(g).

For a few of this group it is partly or fully their own fault as they have forgotten documents they were supposed to bring or to pay relevant fees. Usually in these instances, it just requires another US consulate visa appointment or even a quick dash out to get things and pay the relevant costs, returning the same day to continue the interview albeit with going to back of the queue.

Also in some instance people have lied about their experience, qualifications and/or circumstances and/or their employer has to some degree and this is noticed or suspected by the US conular officer. In these cases the administrative processing that follows will ultimately result in a visa denial or occasionally and instant denial at the US consulate.

(To Note visa like the F1 visa or J1 visa tend not to have this issue. Of course you can still be denied for these visas, but it tends to be instant at the US consulate as the USCIS is generally not involved in these petitions)

However in most cases the “administrative processing” or condition 221(g) is a lot more grey and is often as a result of a very particular case officer hesitation due to some aspect of the application. These can include;

  1. Unsure about the company as never sponsored a foreigner before and/or is a smaller organization or possibly operates in an industry field not usually associated with the professional work visa like E3, H1B and L1
  2. Unsure about the job offer as it sounds like a non-professional or specialty role which may not require a bachelors degree not usually associated with the E3 visa, H1B visa or L1 visa
  3. Unsure about the candidate as either their something amiss about their qualifications and experience and how it relates to the role they are about to fulfill or about their personal background from a security/character/criminal standpoint or for the E3 visa whether they intend to return home
  4. Unsure about the nature of a dependent on the visa petition

The problem is at this point if a candidate receives a letter or notification under “administrative processing” 221 (g) that they lose complete control over the process. Whether their case will take a 1 week or 4 months is really dependent on the individual US consulate, what the backlog is at the time, mailing times, whether the processing will happen locally or be sent back to the US, public holidays and of course the nature of the individual case.

Additionally in most instances there is no way to get extra information until the US consulate contacts you with an update or request for more information or in any way to find out how long the process is going to take. This of course can complete ruin a potential work position, as many employers in the US are unlikely to hold open a role indefinitely with no guarantee of success or timeliness. Then of course individuals and families have also no doubt made travel plans and paid costs and begun to wind down local life so can cause a lot of heartache and financial pain as well.

This is a clear example of the US Immigration system for Legal Immigrants being completely unfair and in need of complete reform. However in the new immigration laws proposed by members of congress, things like this are never discussed as that would be too practical and not score any political points! This aspect and many like it is why the Legal Immigration mess feeds into and causes Illegal Immigration problems for the US.

Sometimes US consulates when required don’t even send the “diplomatic pouch” which carries the case documents back to the US straight away and collect other cases from their particular US consulate and others in the area or country prior to sending it back. This of courses further delay along with the fact the USCIS who re-process these cases often view this as low priority cases to evaluate.
In truth this process should only be used sparingly by US consular officials as in many cases just duplicating work already done by other US Government agencies as well as the Private employer.

I wish I could give more hope and insight to the process for people in this situation but it is a veyr mysterious process and this is all that is really known about it. All I can hope is that you never be subject to condition 221 (g) and administrative processing!


E-3 Visa Demonstrate Residence Abroad Condition

When it comes to the E3 Visa one of the most common questions asked is the ‘demonstrate residence abroad’ condition and specifically why does it exist, how you prove it, how does it apply to the no dual intent provision and finally what are the risk it will affect being approved for US visa sponsorship under the E3 visa.

Why Does it Exist & The Dual Intent Provision

As a quick bit of background, the ‘demonstrate residence abroad’ provision applies to all visas which do not specifically allow for dual intent like the H1B visa. Essentially dual intent as a provision specifically allows for the visa holder so simultaneously pursue Permanent Residency in the US. So visas like the E3 visa as well as the J1 Visa and F1 Visa among others have this same ‘no dual intent’ provision where the applicant when at the US consulate has to demonstrate residence abroad.

Now in saying that while the E3 Visa does not have a dual intent provision like the H1B visa, it also unlike the J1 Visa and F1 visa doesn’t specifically prohibit a person from pursuing permanent residency/green card either. You can read what the exact wording is, in some of the other links about the E3 visa contained in this post.

How Do You Prove It & Risks To You As A E3 Visa Applicant

This is a question with no exact answer and often is dependent on your particular background and ties with the US and also somewhat on how detail orientated a particular consular official may be.

In general it must be said though that Australians on the whole are though of as low risk non-immigrants and visitors to the US in terms of people who are like to overstay their allowed time. This has a lot to do with the fact that Australia is another rich Western country so their applicants are not under the same scrutiny as other countries considered higher risk.

Often many E3 visa applicants report when they visit the US Consulate for their interview that they have not had to show any evidence as proof of demonstrating residence abroad and many others just had to verbally say ‘yes’ they intend to return.

So for example from being involved with hearing people’s E3 visa experiences, the people that tend to have to provide the most evidence to prove this condition include;

– those not born in Australia and may have recently become Australian citizens
– those with few family ties in Australia often because of the experience above
– those who have many close family connections who are residents or citizens in the US
– those who may have overstayed a previous US Visa or Visa Waiver Program
– unusual elements in your past like criminal history, etc.

However when you attend your US visa interview it is always good to have proof on hand just in case they do ask you to show evidence. So the type of information that can be helpful in this regard includes but is not limited too;

– close family ties in Australia (this is often a verbal proof and is easily verified by US consular officials)
– significant asset ownership proof like mortgage document for home, car, business, etc.
– bank statements with account history
– verbal mention of prior US visa visits where you obeyed the conditions of entry
– miscellaneous linksĀ  that tie you to Australia that will compel you to return
– citizenship/residence and asset documents you may have for another country that you intend to leave for

As you can see there is no set list but the top 3 to 4 items are the standard ways to prove your ties. The truth is if it is obvious that you have sold up your entire life in Australia and you also fall into the higher risk categories I mentioned earlier you may be asked additional questions or they may decide to investigate your particular case further and not approve your E3 visa on the spot. This is often called administrative processing and on average take 1-3 weeks extra but can extend into months on rare occasions.

Like I said in all likelihood this is not a condition you have to worry about too much but it always pays to be prepared when attending your E3 Visa US Consulate Interview.

Good Luck as always,