us-aspirant

Hello Everyone,

I am asking the same old question that has been asked here for million times.

I am in US on E-3 and my company is happy to start GC process. Not surprisingly, their lawyer suggests to move to H1b first and then apply for GC.

I am of Indian origin so i will have lots of E-3 renewal before i get GC.

I showed him the USCIS memo about not refusing E-3 application or renewal for the reason of applying GC.

He is like, that's fine but when you go overseas and try to re-enter, CBP officer will see your GC application as intention to reside in US permanently and may turn you away. This conflicts with E-3 which by nature is temporary visa. How correct is this ??

And he added the same thing, you might face issues at the time of E-3 renewal. Again, has someone successfully renewed (or went to Canada and got a new E-3 visa) while GC application was pending ?? I know, wakkas got his GC on E-3 but he never had to renew his E-3 visa.

Can someone please share their experience about re-entering the USA aspect as well as the renewal ??

I really don't want to switch to H1b as my wife will lose EAD and will be pretty much unemployed for a long time in my case.

Thank you.

e3geek

This is a very important question and I would like to know other people's experience about it.

Regardless of renewal what happens if you just go out to another country for visit while your GC is in process. Can CBP officer do something about it?

ian-mstm

All visas are temporary! It seems your lawyer is concerned with you having "dual intent". The E-3 visa does not prohibit dual intent. Further, it's unlikely that a CBP officer will know that you have a GC application in process... unless you tell him yourself - which I suggest you don't do! But, even if he does know - your E-3 is still valid and you can still be admitted into the US in E-3 status. I think your lawyer is being overly cautious.

Ian

us-aspirant

Thanks Ian ..

Yes. I meant to write conflict with dual intent ..

I know, on this forum, time and again, it is mentioned that E3 -> GC is possible and many people have done it.

But when an immigration lawyer questions it, doubt creeps in ..

I am more concerned about re-entering US thing than renewal .. Has anyone reentered USA on E-3 while GC application was pending ???

i know, i will definitely go overseas many times before i actually get GC (if i get one)

jxv73

The non-immigrant visa application form (DS-160) asks if you have been sponsored for an immigrant visa. So you would have to disclose this to the DOS when applying for a renewal. You would then have to reassure the consular officer that if your immigrant petition is denied, you will leave the US. That is, overcome the "immigrant intent" presumption of section 214(b). I don't have any experience on how easy or hard that would be.

With an H-1 visa your are not subject to 214(b).

Noorah101

I don't see where the OP says he's going to be sponsored for an immigrant visa, though.

Rene

hungryhorace

Are you referring to the fact that he will be in the USA and adjusting his status? My understanding is that even if no 'visa' will actually be issued, a visa is still made available. ie, on the I-485 one can adjust status because 'an immigrant petition giving me an immediately available immigrant visa number that has been approved'.

So if I am asked have I ever been issued with an immigrant visa, I would answer 'yes', despite not ever formally applying on a DS-160 for a visa stamp.

Noorah101

I wouldn't.

There is a difference between being issued an immigrant visa (you get a visa in hand), and getting PR status via AOS (you do not get a visa in hand).

A "visa" is not made available through AOS. A "visa number" becomes immediately available.

Rene

jxv73

This is the actual question in the DS-160:

Has anyone ever filed an immigrant petition on your behalf with the
United States Citizenship and Immigration Services?

I cannot edit my post so I will simply correct it below:

The non-immigrant visa application form (DS-160) asks if an immigrnat petitions has been filed in your behalf. So you would have to disclose this to the DOS when applying for a renewal. You would then have to reassure the consular officer that if your immigrant petition is denied, you will leave the US. That is, overcome the "immigrant intent" presumption of section 214(b). I don't have any experience on how easy or hard that would be.

With an H-1 visa your are not subject to 214(b).

hungryhorace

Thanks, that's exactly the point I was attempting to make (though far less eloquently).

jxv73

Also, note that if you have started PERM but have not filed an I-140 the answer to the question is "no".

Strategically speaking, I see your lawyer's point: since you were born in India, you are looking at several years with an approved I-140 but no chance of filing an I-485, so this has the potential of complicating your E-3 renewals. Because the H-1B season opens in April, now is the time to make the switch. One thing I do not know is for how long the E-3 visa is issued. If it's three years, you could renew it while the PERM is pending and still safely answer "no", which buys you some time before having to switch to H-1B (and maybe immigration reform?... hey don't laugh)

zenjabba

Let me answer this one for you guys to put this to bed.

I held a green card previously and for "reasons" gave it up in 2009. I am back in the USA on a E3 visa and have answered that question in the positive 3 times now and have had 0 issues at any times.

I'm currently going through a GC process on the E3 and renewed the E3 whilst in the process and had 0 issues with the officer.

us-aspirant

zenjabba, thanks for your reply.

Do you mean you had no issues at airport with the officer entering on E-3 while GC process was in process??

Did they even ask about GC application ?

Appreciate extra information.

ozziecat

I have been in the USA on an E3 visa since 2006. I applied for a Green Card in 2008 and have been waiting ever since to have a green card granted (my category is currently on priority dates in 2006).

I got my original E3 visa granted in Shanghai in 2006, where I was living at the time.

I have had my E3 visa renewed every 1.5 years since then in Halifax, Australia, Montreal and Paris. I have always fully disclosed my GC status on the E3 application. I have also had consular officers tell me I should apply for a GC to which I have replied that I already am in the application process (apparently they didn't read my application closely). This has caused no issues for me in renewing my E3 visa. No guarantees that it will be the same for everyone, but that has been my experience.

Hope that helps!

zenjabba

No issues whats so ever.