Tag Archives: uscis

E3 Visa Renewal & Reissue Without US Consulate Interview

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So occasionally the US Immigration system makes some positive changes. We recently talked about the ability to use an unexpired US visa in your old passport while using a new passport to travel and now a recent change will help the E3 visa renewal process to be quicker for some people.

The E3 visa itself is on the lower end of complex non-immigrant visas in the US Immigration system in terms of documents, costs, competition, approval process and logistics of actually obtaining the US visa in your passport.

However the US Immigration system is inherently complex and often very unfair and unforgiving, and many people unfairly get caught up in this. Often with the E3 visa this happens at the last hurdle just when an applicant is up to the final stage and attending their E3 Visa US Consulate Interview. Often not fully prepared people are in a manner of speaking ambushed at this juncture and can have their visa application outright denied or almost as bad have it go through Administrative Processing.

Now many people are up to or have gone through their first E3 visa renewal after their 2 year period and others have gone through 2 or 3 visa renewals. Now this E3 visa renewal can be done within the US but the drawbacks with this approach are that it has to be done via the USCIS. This means the process can take up to 6 months but on average for most people seems to take about 1-3 months to be approved. So this requires plenty of planning in advance with your employer if this is to be done.

Unlike the H1B visa where it explicitly states, that a foreigner on this visa can continue working while this renewal application is being process, the E3 does not. This is actually common with the E3 visa in that USCIS directives are that when in doubt it should follow the H1B visa legislation since that is what it was modeled on and is similar too, however as it is not explicitly written in the law, different people give different advice both from the Legal industry and from within the US Government itself! Therefore if you talk to E3 visa holders they will give you different advice and different good and horror stories. Because of this what tends to happen as I mentioned above for those that want to do it wihin the country, they tend to plan and do the application well in advance to avoid any potential immigration issues.

The other thing to note in regards to the E3 visa renewal petition itself with the USCIS is that a new Labor Condition Application approval is needed from the Department of Labor and then a fee is required to be paid to the USCIS for the E3 visa renewal petition which is currently over $300 USD. This differs from doing the application outside the US where the only fee is the US Consulate application fee which is approximately $130 USD.

The biggest drawback other than the cost/time issue with doing the E3 visa renewal within the US is that you don’t actually get a new E3 visa. In fact as far as the US Government is concerned it is not your US Visa that has been renewed or extended it is your US Visa status that has been extended. This subtle distinction which may seem just semantics actually means a lot.

If you were to travel Internationally anywhere after your current E3 visa has expired but you have an approval for extension of E3 visa status from the USCIS, you will need to re-apply again for a new E3 visa at a US Consulate. A vaild and unexpired US visa is needed for re-entry into the US and the extension of status you received within the US just means you can continue working legally and operate as normal but does not give you the new visa which is the only thing that get you reentry into the United States under that same visa status.

So given all that what is the positive change that has recently been made for E3 Visa Renewals and Reissues.

Well for Australian citizens on the E3 visa who;

  • Are applying for the same type of visa within 12 months of the expiration of your previous visa?
  • Have previously provided a full set of 10 fingerprints at a Consulate during a visa interview?
  • Are an Australian citizen or permanent resident?
  • Area resident of the Consular district in which you are applying for your visa?
  • Where the previous visa approved at the time of the interview without any correspondence from the Consulate indicating your application required further administrative processing?
    and whose…
  • Previous visa was not lost, stolen, or revoked;
  • Have not changed your name or nationality since the issuance of your last U.S. visa;
  • Have not been previously refused a visa or entry into the US;
  • Previous visa did not require a waiver of ineligibility (For example: criminal convictions)
  • Have had no arrests or convictions (other than minor traffic violations) that have occurred since your previous visa was issued.
  • Have no ineligibilities or reason to believe you have failed to comply with U.S. immigration law

So if you could answer yes to all those question you may be eligible to the E3 Visa Renewal and Reissue without attending the US Consulate Interview. It should be noted that you have to present within your designated Consular district within this time and you have to mail the application from Australia and not from the US.

There isn’t any word on the processing time of all this but if they could legitimately receive an application you posted on Monday, on Tuesday. Then take 24 hours to review and to the E3R E3 visa renewal in you passport and mail it back to you by Thursday or Friday that same week, then it could definitely be worth it. However if it takes much longer than this period to process that could effect many people’s plans so we will report back as we find out more and look forward to your feedback and experiences with this process.

CJ

H1B Visa Deportation News

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The recent deportation of a number of Indian H1B IT workers from Newark and JFK airports has sent shock waves through the H-1B community. H-1B employers, employees and their attorneys alike are flabbergasted by this brazen act of official highhandedness where individuals arriving on H-1B visas were singled out even before their primary immigration inspection, put through a sham questioning, forced into making coercive statements, issued expedited removal orders, and sent back! Their crime? They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. entities, but at a location other than their office, i.e., at a client site or third party site!

H1B employees working at a client site or a third party site is a practice as old as the H1B program itself, and is not a violation of the regulations when supported by appropriate documentation. What is shocking is that the disgraceful action by CBP inspectors was triggered by an overzealous (mis)interpretation of a recent Memo issued by Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services (USCIS).

At its core, the Neufeld Memo underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States. In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

Based on the experience of this writer in processing thousands of H-1B petitions over a period of more than 15 years (and attending to the resultant issues), this situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Also, H1B employees should be educated on how to answer questions from overbearing government officials. Pardon me for saying this, a small minority of companies, through a lackadaisical attitude towards adhering to the regulations, seem to bring a bad name to the entire H-1B community and to the H-1B program itself, resulting in such sweeping governmental actions that affect legitimate H1B employers and put the lifestyle of unsuspecting employees and their families in jeopardy. Moreover, this supplies fodder to the anti-H-1B bogey that is becoming more and more vociferous in the light of rising unemployment in the United States. We, at our office, always make it a point to emphasize to H-1B employers and employees alike to strictly adhere to the governing regulations and requirements of the H-1B program.

As stated above, the focus of the CBP enforcement action is as to who the actual employer is. It should be noted, in situations where an individual works at a location different from the petitioning company’s office, the question is whether such petitioner employer has the “actual” control or the “right” of control over the H1B employee. When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control. There are various ways to meet the requirements of actual control or right to control, as we have been advising our clients, by ensuring acquisition, usage, and maintenance of appropriate documents. It takes logical planning under effective legal guidance.

In conclusion, we would like to remind our clients and other readers of this article that the government’s enforcement of the regulations can be expected to become stricter in the future, and appropriate proactive steps will save the employers and employees alike a lot of hardship and aggravation.

Guest Author

Morley J. Nair