Episode 98: Down under: Exploring the upsides and downsides of E-3 visas

Episode 98: Down under: Exploring the upsides and downsides of E-3 visas

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s episode, BAL’s David Wagner and Nathan McKinlay-Roy continue their discussion on treaty visas from Episode 97, focusing on the E-3 classification for Australian nationals. Plus, the latest immigration news.

From Dallas, Texas, I’m Rebecca Sanabria.

Treaty and trader visas enable foreign nationals from countries the U.S. has commercial treaties with to work in the United States. More than 70,000 were issued in fiscal year 2023.[i]

There are three nonimmigrant classifications for treaty visas: E-1, E-2 and E-3.

Episode 97 of the BAL Immigration Report addressed factors employers should consider to determine if an E-1 Treaty Trader or E-2 Treaty Investor visa is right for their immigration program.

In this episode, BAL senior associates David Wagner and Nathan McKinlay-Roy from the Denver office continue their discussion on treaty visas, focusing on the E-3 classification.

Wagner: The E-3 visa is specific to Australian citizens, individuals that have an Australian passport. It is still a similar concept to the H-1B specialty occupation visa. We do have to demonstrate that the E-3 is a specialty occupation, but it is a much quicker and more expedited process because we are able to submit a labor condition application once we’ve identified the individual and the consulate that we’ll go through.

We are able to have the labor condition application submitted, certified and then whenever that appointment is ready, we are ready for them to go to the E-3 visa stamping appointment. It’s a much quicker process than having to go through U.S. Citizenship and Immigration Services initially.

Nate, you work on a lot of E-3s with a variety of clients. What are some of the downsides to using the E-3 potentially?

McKinlay-Roy: I think right off the bat, just based on kind of comparing what I was discussing earlier with the other E categories, there’s a status document that really governs someone’s work authorization in the U.S., and there’s a lot of strategic planning that goes into just how much time can we maximize on the two-year validity of the E-3.

Taking a high-level overview, the E-3 does allow for two years in the U.S. for someone to work in that specialty occupation. That’s a firm two years. The stamp is going to be valid for two years, and the work authorization is actually tied to the labor conditions application that’s originally certified by the DOL. The actual visa stamp is also annotated accordingly.

The challenge with the E-3 visa oftentimes with my clients is it poses a continuous need to track and renew the status all the time. Where that becomes particularly challenging and really cost inefficient for companies is when you have someone who’s a continual traveler, someone who’s traveling in perpetuity throughout the life cycle of their U.S. immigration history, someone who has to come from Melbourne, Australia, go to Denver. They relocate to Denver and now they’re going to go back to Australia all the time. That’s going to be someone where every year and a half, we’re just going to be constantly following up to renew their visa, and that creates cost inefficiencies.

More importantly — and where we see a lot of downsides with the E-3, at least long-term — again, the E-3 falls under that strict nonimmigrant classification for immigration purposes. The challenge, the hurdle here is the Es don’t by themselves prohibit someone from getting a green card. All they do is they create hurdles that we have to navigate long term.

We often run into situations where someone might have, let’s just say, a potential L-1 argument. Let’s just say, for instance, we have someone who’s working in Australia, and they’ve been with a company in the Australian operations for about six-and-a-half months. They don’t just yet have the full 12-month period for L-1 classification, but the company needs them started in the U.S. as of yesterday.

They’re essential. They’re critical to the operations in the U.S. They’re Australian, so it’s perfect. We get to bring them in on an E-3. The company’s original thought is, I don’t think they’re going to localize in the U.S. I just don’t see them bringing everyone over. They’re not going to be here for a long term. This is just kind of a fun stint. They need to be here for a short-term project.

A year-and-a-half later, we find out that they want to stay here. Their kids really like being in the U.S. The dog is happy in the U.S. Everyone likes being in the U.S. The challenge with that becomes, okay, well, we gave up potentially faster tracks to a green card, potentially through a multinational manager classification or a first preference category through the green card, and now we’re looking at PERM.

We’re looking at 18, 20-plus months to get through that process alone. It creates cost inefficiencies for the company. It creates other even greater issues. Let’s just say, for instance, in that hypothetical, that person’s a frequent traveler for the company. As soon as we pursue lawful permanent residence and reach a certain milestone of the green card process itself, that person’s going to lose their ability to travel on the E-3. They’re going to be travel restricted.

Right now, with a lot of discrepant processing from USCIS, we’re seeing EADs come through as part of green card processing, but they’re not necessarily issuing with combination AP-EAD. That person might be stuck in the U.S., and that might create business hurdles as well.

All of it is to say that I think the Es allow for a really easy runway for companies, at least strategically, to bring people in quickly, but it can be really shortsighted in terms of strategic planning for people that may have future and more longer-term plans in the U.S. The Es are a really, really good way to bring people in at least quickly and solve immediate needs, but that immediacy undermines the long-term planning that might revolve around someone’s lifecycle in the U.S. from a strategic standpoint.

Wagner: Nate, if I had an employee, if I’m a company and I had an employee in another country outside of Australia, would you feel comfortable going through another U.S. consulate or embassy to process for an E-3 visa?

McKinlay-Roy: It would depend on the consulate. The E-3 is really limited in terms of just the knowledge base that exists out there with the U.S. consular service. I would say we typically feel pretty comfortable sending people to London or Canada if it can’t be Australia. Obviously, a flight to Australia from the U.S. is a lengthy journey. We actually have a lot of clients that would prefer to just go to London. London produces them pretty quickly.

Canada also happens to be a pretty good safe harbor for E-3 processing. If a company or an individual really felt themselves squeezed and had to go for processing in another post, I think it would require our group to really prep them accordingly just for any potential issues or administrative processing, because even an officer at another post, they might not know what an E-3 is. They might just not have familiarity with it and they might require supervisory approval.

Wagner: Does the E-1, E-2 or E-3 provide work authorization to a spouse?

McKinlay-Roy: Under at least existing rules with U.S. immigration, work authorization incident to status does apply to the spouse of an E-1, E-2 or E-3 individual.

What the spouse would get is when they arrive in the United States, and I guess just for high-level overview, work authorization incident to status basically means that as soon as someone’s here on an E-3 visa and they’re the dependent spouse of the principal E-3 holder, they can immediately work in the U.S.

The I-94 that now says E-3s, E-2S as in spouse, the I-94 that now designates that actual classification serves as a List C Employment Verifiable document for I-9 purposes and they would have a two-year authorization to work. All of that is really readily renewable with the E-3 principal as well.

So there are immediate benefits, but again that rule, a lot of companies that have an E-2, an E-3 program, you’ll see that they have a lot of L-1 capabilities as well. The L-2 visa also for spouses allows for work authorization incident to status. I’m not trying to say that I’m a huge fan of the L, but it is one of my favorite visas. So if I could just put that plug out there for L-1 visa processing, I think I will.

Wagner: I think it’s important to note that when we have the situation between an L-1 based on prior foreign employment or an E-2 or another potential option, we generally want to err on the side of caution and pursue an L-1. But if they don’t have that foreign year of employment, then we are going to be focused on trying to get them to the job site or the work site as quickly as possible.

The E-3 and the E-2, if those are options, generally provide a really quick option to get an employee to the U.S. With some of the industries that Nate and I work on — construction, mining — they’re very time-sensitive kind of projects. With Es, that provides an avenue for some of our clients to have employees come to the U.S. immediately, almost with very little lag time to getting them here on the job site.

So when you are thinking about potential options, if you have an employee that has the same nationality as the company’s E-2 or the individuals from Australia, the E-3, these are great options to get an employee to the U.S. in a quick manner.

Learn more about which visa options are right for your immigration program at bal.com.

And now, the top U.S. and global immigration news.

The presidential election results are in. What does this change in administration mean for your foreign national employees? Join our Government Strategies team for the free webinar on Nov. 19, “Countdown to inauguration: Preparing your immigration program for the first 100 days of a new administration.” Look for “Events” on bal.com and register today!

In other U.S. news, Secretary of State Antony J. Blinken announced that the U.S. State Department issued a record-breaking 11.5 million visas in fiscal year 2024. Visa wait times are down by nearly 60% since the height of the pandemic backlogs.

In global news, South Africa’s Department of Home Affairs determined the new points-based system applicable to general and critical skills work visas. Applicants applying for a critical skills work visa must score at least 100 points by having an occupation listed on the critical skills list and provided all other prescribed requirements are met.

The Thai government announced a new facial recognition technology to streamline passenger identification and reduce wait times. International travelers will be able to access the new system beginning Dec. 1. Passengers can complete biometric enrollment at airline counters or self-check-in kiosks, where facial data will be captured alongside passport scans. The government is expected to announce at a later date which nationalities will be exempted from completing biometric checks.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

Copyright

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.

[i]https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2023AnnualReport/FY2023_AR_TableXVA.pdf