I’m the US right now in the midst of the COVID-19 pandemic and lockdowns/shutdowns across most of the economy. One of my friends and colleagues happened to have his E-3 visa expiring next week, and so the usual options of a visa dash started closing down pretty fast. Canada closed their borders on March 16th, and while Australia will have you back (if you can get there), the Consulates have limited their operations from March 17th which basically means unless you have a mail-in application, you’re going to be waiting a long time to get your visa approved. Even if you got your passport back via a mail-in renewal, the chances of making it back into the US this side of June is pretty questionable.
There is, however, some good news: you can apply for your visa on-shore and as long as your employer sends in your application before your visa expires, you’ve got an immediate extension of up to 240 days where you can continue legally working in the US.
This approach is normally a lot less attractive because it takes a lot longer – at the time of writing, the Vermont Processing Center was taking 3.5-5 months. Compared to a quick trip to Vancouver, Toronto, Mexico City or back to Australia where you can get in and out in around 1 week, this slow process was pretty unattractive. However, with COVID-19 in full swing, flights suspended, consulates basically closed and borders closed, the I-129 route (and being stuck in the US while they adjudicate your case) is actually not such a bad thing.
The I-129 Form
The I-129 Form is not a new concept – it has been around a long time. Most folks doing E-3 initial visas or renewals, however, don’t know about it or choose to do it because it is a lot slower.
You can download the I-129 form from the USCIS here. They also provide really quite clear and helpful advice on completing the application (ie, what boxes to tick for what you need to do) in their I-129 Instructions PDF.
The way it works is that you get your LCA (which could be also difficult in these times) and send in the Petition (the employer is the petitioner) to the Vermont processing center (at the time of writing). The form and the additional materials come to about 60 pages, but the good news is that E-3 visas (once again) get off pretty lightly – most of the higher cost and additional paperwork is for H1-B and some other visas.
The instructions PDF at the time of writing said the following information would be required along with the I-129 form:
For all classifications, if a beneficiary is seeking a change of status or extension of stay, evidence of maintenance of status must be included with the new petition. If the beneficiary is employed in the United States, the petitioner may submit copies of the beneficiary’s last 2 pay stubs, Form W-2, Internal Revenue Service (IRS) transcripts of the beneficiary’s federal individual income tax return for the three most recent tax years, and other relevant evidence.
Principles of Extension
From an employment perspective, as I understand it there are two things someone on an E-3 visa needs to remain legal in the US – permission to be in the US, and permission to work in the US.
Permission to be in the US (the I-94)
Whenever we cross the border into the US, the guy/girl behind the counter at CPB (in between asking about our work and taking our fingerprints) is creating a new I-94 for us. The I-94 is the document that gives us permission to be in the US. Per the USCIS FAQ on extending your stay:
“..the admissons (sic) stamp in your travel document or the I-94/I-94W shows how long you are permitted to remain in the United States, but your nonimmigrant visa (if a visa was issued) does not. A visa only shows when and how many times you may seek admission to the United States from abroad based on the classification noted on your visa.” (emphasis added)
As long as your passport is valid and you apply before your I-94 expires, you’re generally able to apply to extend your stay from within the US.
When it comes to our I-94s, I honestly don’t know why they give us 2 years from date of arrival – I’ve seen I-94 dates extend beyond the expiry of a passport, and except for showing up the date our visa is granted, it also means the I-94 expires after our visa. Considering how inflexible/crazy the whole system is, it is pretty strange to me that they do it. I’ve also heard that it isn’t guaranteed that your I-94 will go for 2 years from the date of entry, so it might be laziness by CPB officers who just know the visa is a 2 year visa and so set the expiry of the I-94 to be that long. If it is laziness, that’s great, because having an I-94 expiring in the future is critical to being able to do the extension via I-129 process.
Permission to work in the US (the E-3 visa)
Since this is about extending your visa, this is where the focus of the application/process is. I still have a few questions at the time of writing about how this all works, but given the alternatives right now are close to nil, I figured this was posting about (was going to wait until the process completed, but COVID-19 has a lot of people unable to travel so having something out there is better than nothing).
An important note here is that for an E-3 visa extension/renewal/modification, it is ideally the (new) employer who is petitioning USCIS on behalf of the employee (the FAQ at for Temporary Nonimmigrant Workers calls out E-3 as one of the visas that someone can submit their own I-129 for).
The easiest method (and only one I’ve tried) is the extension of same role for same employer, and I’ve read conflicting information about whether this approach works for changing employers – H1-B and H2-A statuses are specifically allowed to change employers while the I-129 is being processed, but E-3 might get caught in the rule “The employee cannot begin working for the new employer until USCIS approves the petition.” (see this FAQ under “Changing Employers” heading)
For the extension of a visa for the same employer (from this FAQ):
To extend the period for which a nonimmigrant employee was admitted, an employer must file a new Form I-129 petition for the employee. Generally, the employee may continue working for the same employer for up to 240 days or until USCIS makes a decision on the petition, whichever is sooner.
If you’re the employer, you need to submit a new I-9 (asserting you’ve checked the validity of the visa/work rights of an employee), and since you can’t eyeball a visa that isn’t yet in their passport, you should:
write “240-Day Ext.” and the date he or she submitted the Form I-129 petition to USCIS in the margin of Form I-9 next to Section 2
Special Note if you have dependents:
While the employer files the I-129 for your E-3 visa, you need to file a single I-539 Application to Extend/Change Nonimmigrant Status for all of your dependents and get them processed at the same time. From the same FAQ above:
If your employer files a Form I-129, Petition for a Nonimmigrant Worker, to extend your stay and your spouse or unmarried children under age 21 also want to extend their stay, they need to file (paper based or e-file electronically) using Form I-539, Application to Extend/Change Nonimmigrant Status. They can all be included on one I-539. It is best to file the I-129 and I-539 together so that they can be adjudicated about the same time. Remember, though, that they are separate applications. Therefore, you and your family members (and your employer) must follow the instructions and attach all supporting documents with each application, even when filing the forms together.
What I haven’t been able to determine is what happens when USCIS actually comes back and says “sure, you’re approved to extend stay”. The visa in the passport is still showing a date that has expired, so you won’t want to come back across a border without getting a new visa in your passport – I don’t know if you can then apply for a fresh visa on-shore or if you’re basically going to be looking at your next international trip also incorporating some time on a visa-run.