January 18, 2022

Volume XII, Number 18

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January 18, 2022

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Change of Employer for E-3 Visa Holders Effectively Barred Due to Pandemic and USCIS Processing Times

A complex combination of the pandemic and USCIS’s ever-increasing processing times has chained E-3 visa holders in the United States to their current employers. The E-3 visa is a special category for Australian nationals seeking to work in the United States in a specialty occupation. Generally speaking, specialty occupations are those which require at least a bachelor’s degree or higher for entry.

The E-3 visa was an outgrowth of the Australia-U.S. Free Trade Agreement (AUSFTA), although it is not enshrined directly within the AUSFTA. Rather, the E-3 visa was created via legislation which amended the Immigration and Nationality Act as reciprocity for the ability of Americans to obtain work visas in Australia. The E-3 visa is attractive for Australian nationals because it permits spouses to obtain work authorization (unlike its specialty occupation counterpart the H-1B visa), and it is renewable indefinitely in two-year increments.

Virtually all E-3 visa extension-of-stay and change-of-employer applications also happen at a consular location, usually in Australia, rather than through USCIS. This is because the consular E-3 process is faster and more efficient than applying via USCIS. Normally (when not in the midst of a pandemic), an applicant can take a short trip to Australia and obtain a new visa, whereas E-3 applications via USCIS cannot be premium processed, can take months to adjudicate, and do not grant the travel permission to reenter the United States. Furthermore, E-3 change-of-employer applications filed with USCIS must be approved before the applicant can start work for the new employer. This trend is borne out in the statistics,—in fiscal year 2019 before the pandemic, 5,807 E-3 visas were issued by the Department of State. In comparison, USCIS has not reported the number of USCIS E-3 applications adjudicated in recent years, lending credence to the notion that such applications are extremely rare.

As has been widely reported, the pandemic has caused widespread and long-lasting disruptions to consular services worldwide, with few, if any, consular locations processing routine visas. Routine consular services in Australia were first reduced and then suspended at the beginning of the pandemic and have yet to resume at scale. Without the option for E-3 visa applicants to travel to Australia to attend an E-3 visa interview at a consulate, E-3 visa holders must file an extension-of-stay or change-of-employer application with USCIS. Because E-3 visa holders are forced to file with USCIS, the pandemic’s impact has been exacerbated for such visa holders due to longstanding issues with USCIS processing times.

Stretching back to early 2018, processing times at USCIS spiked exponentially for all application types. The American Immigration Lawyers Associated reported in 2019 that average case processing time surged 46% from 2017 to 2019 and 91% since 2014. While much has been written on USCIS’s issues in this regard, the combination of processing time issues and pandemic consular closures has put E-3 visa holders in a virtually impossible situation with respect to employment.

Effectively, an E-3 visa holder cannot currently change his or her employer without an extended delay. USCIS’s posted processing times for E-3 applications are currently approximately five to seven months, and such applications cannot be premium processed. While recent legislation authorized the Department of Homeland Security to grant premium processing to E-3 applicants, it has not been implemented yet. Thus, employers seeking to hire an E-3 visa holder in the United States would have to wait five to seven months for an application to be approved before an employee starts work, something which is extremely unlikely. Furthermore, if an E-3 visa holder tries to change their employer by applying via a consular location in Australia, they will have to run the gamut of quarantine requirements, travel restrictions, potential lockdowns, flight disruptions, and consular appointment availability, which also can delay the visa process by many months.

The net effect is that E-3 visa holders face a de facto bar on changing employers during the pandemic. Permitting E-3 visa applications to be premium processed or establishing portability provisions similar to those granted to H-1B visa holders are possible solutions, but neither will likely be effective prior to the end of the pandemic. The silver lining is that the pandemic has exposed this as an area to be reformed (one area of many exposed by the pandemic) to ensure the proper functioning of our immigration system and employee mobility during a future pandemic or period of travel restriction.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 34
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About this Author

Dillon Colucci, Greenberg Traurig Law Firm, Los Angeles, Immigration Law Attorney
Associate

Dillon R. Colucci practices and handles U.S. immigration concerns and helps individuals, families, professionals, skilled workers, investors, and businesses live, work, invest and do business in the United States. Dillon works extensively on EB-5 immigrant investor matters. He regularly works with developers across a variety of industries, as well as private equity funds on developing new projects that qualify for EB-5 investments. This includes the creation of new Regional Centers, having projects adopted by existing Regional Centers or through pooled individual EB-5...

310-586-7749
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