Tag Archives: uscis

E3 Visa Process

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We have so much on the E3 visa already at our main info page as well as our E3 Visa FAQ page which contains links to all major E3 visa resources on this site as well as some great tips and information.

So really this topic is already covered via the above resources but given the large amount of search volume from this query to our site more than anything else, along with many comments, we will do a brief post on the E3 visa process itself.

Step 1: Find an Employer willing to sponsor you
This is of course easier said than done but the crux of this is finding a US employer who is willing to hire you and thus sponsor your E3 Visa. The barrier to entry for this is at least less than the H-1B visa which has certain times of year associated to it, a very competitive fixed quota and large costs. However most employers will not hire someone without at least one face to face interview so there could be expense for you to achieve your goal. Note you can’t apply for your E3 visa as a new visa from within the US or transfer to it from the Visa Waiver Program. You can transfer to it from visa like the J1 Internship visa and F1 Student visa.

Step 2: Apply for Jobs At US Companies
I guess this is really interchangeable with Step 1 or indeed a subset of it. Given the important and uniqueness of this act I thought I would devote a paragraph to it. Of course for a foreigner on the other side of the earth to find a job in the US is some kind of effort and certainly requires some forward planning. Many people come to the US on the visas mentioned above like the J1 visa and F1 visa as a stepping stone to working in the US allowing them time to make contacts and attend interviews while under legal status. However many people do indeed do things like apply to jobs from Australia and then fly to the US and attend as many interviews as they can. Some good general tips are to have a US phone number on your application (i.e. via Skype), try and have a US mailing address if possible and mention visa status on their resume in explaining it to a potential employer. Of course from here the job interview and selection process is generally similar to what people may be used too but note that salary negotiations are a much bigger part of the US process and often begin right upfront. Finally ensure you understand the specialty occupation and bachelors degree provision.

Step 3: The Visa Application process
Once an employer has agreed to hire you and sponsor your E3 visa they need to file form ETA-9035(e) with the US Department of Labor. This is so they can received an approved Labor Condition Application (LCA). This is a free filing and can be done online. Essentially on this form includes details on the nature of the job, the nature of the company, a little on the candidate (i.e. you) and the salary. You should note that the salary has to meet the Department standard for the average salary for that type of role in that region of the country. You would take this document, along with an offer letter from the company to your US Consulate Interview for the E3 visa.

Step 4: The US Consulate Interview
From the link referenced above you can see a detailed account of the US Consulate interview for the E-3 visa. You can do this in other countries like Canada, UK, etc. but of course the most common tends to be at a Consulate in Australia. You should take as many supporting documents as possible including bank statements, asset ownership proof, copy of your degrees and any licenses that may be relevant to your role, etc. One of the things you need to demonstrate is the residence abroad condition. This is basically proof to the US that your ties to Australia are strong and that you intend to return home at the conclusion of your E3 visa period. The more prepared you are for this, the easier and quicker and less hassled it tends to be. You should note that you have to prepay the E3 Visa Application Fee at Australia Post prior to your interview.

So that in short is the E3 visa process but like I said read a lot of the other posts for in depth information and tips about particular aspects and how you can best navigate them.

Good Luck,
CJ

USCIS and H1B Visa Site Visits To Prevent Fraud

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For the past few months, the U.S. Department of Homeland Security, Citizenship and Immigration Services (“CIS”) has conducted an investigation program aimed at visiting H-1B petitioner worksites throughout the U.S. These site visits began as part of the CIS’ goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (“FDNS”), published this past September. According to the FDNS’ findings, as many as one in five H-1B applications were affected by either fraud or “technical violations” of the H-1B program.

Why should employers care?
Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee or other employees presently on site. Any inconsistencies found can mean big trouble for employers.

FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However other sources say that employers are not required to give in to the investigators’ demands without a subpoena. What to do? Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. CIS has indicated that attorneys can be present during an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit. Attorneys may be present via telephone in these circumstances.

Some common questions that have been raised by employers include: “how are companies selected to be investigated,” “if I am visited, should I be concerned,” “what type of violations are the investigators looking for,” and “how can I prepare for a site visit from a CIS/FDNS investigator?” To address these issues in order, firstly any employer who has filed an H-1B petition can be subject to a site visit. While CIS claims the employers are chosen at random, close to 40,000 employers’ names have been selected for site visits. Some factors that may have been taken into consideration when selecting these 40,000 employers include: companies with less than 15 employees; companies with less than $10 million in sales; companies less than 10 years old; accounting, HR, business analyst, sales and advertising positions; and petitions where the beneficiary merely had a bachelor’s degree, not an advanced degree.

If your company is visited and your records are in order, you have nothing to worry about. Generally speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) for further investigation depending on the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.

The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non- payment of a prevailing wage to the H-1B beneficiary. More specifically, the investigators may be looking for the following types of violations: job location not listed on the H-1B petition and/or LCA; H-1B worker not receiving the required wage; fraudulent H-1B documents or H-1B worker credentials; non-existent business or office location; job duties significantly different from those listed on H-1B petition/LCA; misrepresentation of H-1B status by the H-1B worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee.

How can you prepare yourself and your company for a possible site visit? Step one is to ensure that you have Public Access Files (PAF) for each H-1B worker, and that the PAF documents are accurate and up to date. In general, it is a good idea to review and audit your H-1B/LCA records to make sure everything is in order and all information is readily available. Designate a specific individual at each H-1B worker location to meet the investigator should he/she arrive. Prepare a quick list of facts about the company and also a listing of H-1B workers, work locations, title and salary information so you don’t need to search frantically for this information while the investigator is there. If you are not sure what a PAF is, or if you’d like to have your documents reviewed by legal counsel, you may contact our office at the number or e-mail below.


Guest Author
David H. Nachman