Applying for E3 with a pending Green Card... help!
 

Hi all,

I'm Australian and my wife is American. We were married in the USA but have lived in (and met) in Australia for the past 12 years. She has been a dual citizen since 2006.

We now want to move to the USA to work and live and so filed a I-130 petition to start the green card process.

We're told that could take 6-12 months. I figured it'd be worth looking for work in the US in the meantime in case a good role comes up and they are willing to sponsor me.

Now, I'm close to a job offer with a company that is experienced at hiring Australians via sponsorship... and upon looking into the E3 details more closely I've read I may not actually be eligible due to a 'dual intent' rule that forbids people applying for the E3 if they have intent to permanently immigrate to the USA.

Besides the fact I think this is a completely ridiculous rule, particularly for people in our position... do you think I've got no chance of gaining E3 approval from the Sydney US consulate while I've got a pending Green Card application in process with USCIS over in Chicago?

If I received a US job offer, accepted it, and then somehow cancelled/withdrew my I-130 green card petition, THEN applied for the E3 here in Sydney, would that work?

I've read a lot on here about the 'dual intent' rule being misread often... keen to hear your opinions.

FYI, my wife and I own our home in Sydney, obviously have joint bank accounts, savings, a car, and our daughter is a dual citizen with both passports). I also have my entire immediate family here... meaning I figure it's rather simply for me to prove I have ties to Australia.

I'm most worried though about USCIS simply seeing I've applied for a GC, blowing my argument that I don't have intent to move permanently out of the water.

Thanks in advance.

Re: Applying for E3 with a pending Green Card... help!
 

So why have you filed an I 130?

Re: Applying for E3 with a pending Green Card... help!
 

I don't know where you are in that process, but for sure you don't have a pending Green Card application in process. You have an Immigrant Visa process going on, and most likely only the I-130 process at the moment (if the I-130 is not yet approved).

The I-130 is not a green card petition, it's an immigrant visa petition.

I don't know, but seeing as how you're worried about the "immigrant intent" scenario, that won't go away just by withdrawing the I-130. The intent will still be there, as I'm sure once you arrive on the E-3, you'll submit an Adjustment of Status package to become a US PR.

I don't know how long it takes or what the process is for getting an E-3, but depending on how far along you are in the immigrant visa process, it might not be worth it.

Not really, because you are planning to cut those ties when you get your immigrant visa. So the ties can't really be very strong...otherwise you'd be staying in Australia.

Don't worry, USCIS won't see that, because you haven't done that.

I guess I don't really understand your goal. The way you describe it, it sounds like you DO have the intent to move permanently to the USA. So there really is no argument to be had....unless by getting the E-3 you end up changing your mind and want to return to Australia at the end of it?

Rene

Re: Applying for E3 with a pending Green Card... help!
 

It's perfectly possible to have more than one visa application in process at the same time. It is in fact fairly common to have a work viss in process, which specifies "no immigrant intent", with a spouse or family visa that will lead to a green card on arrival in the US. There is no contradiction in having two such applications in process simultaneously.

Re: Applying for E3 with a pending Green Card... help!
 

Thanks for your reply. Allow me to clarify a few things.

"The I-130 is not a green card petition, it's an immigrant visa petition."

I know... I was being vague for the purposes of simplicity, which I can see now just confuses things. I do understand it's just the 1-130 immigrant visa petition, which if/once approved leads to the actual permanent residency application.

"I don't know, but seeing as how you're worried about the "immigrant intent" scenario, that won't go away just by withdrawing the I-130. The intent will still be there, as I'm sure once you arrive on the E-3, you'll submit an Adjustment of Status package to become a US PR."

Of course I still have intent. The point I was making is, by withdrawing the I-130, I can go forth and apply for the E3 without having a pending petition on my 'record' that shows I have intent to immigrate. I can quite easily argue, via the E3, that me and my family intend to return to Australia eventually, and that my stay is temporary, based on our assets and ties to Australia.

"I don't know how long it takes or what the process is for getting an E-3, but depending on how far along you are in the immigrant visa process, it might not be worth it."

We're 1 month into the process for attaining permanent residency via spouse (IR-1 visa / green card, kicked off by having an I-130 petition filed and received by USCIS. I have a case number). At this point we're looking at a 6-8 month wait at the moment, based on estimates of other filers on VisaJourney.com, to achieve green card status and move to the USA (of course I can't be sure of that timeframe, but since USCIS don't give you a timeframe, it's the best indication I've got). If I'm successful landing employment in the USA, we could move over there much quicker. From what I've read, E3 applications are turned around in less than a month in most cases.

"Not really, because you are planning to cut those ties when you get your immigrant visa. So the ties can't really be very strong...otherwise you'd be staying in Australia."

Not necessarily. We've considered keeping our property and some assets, that's more of a taxation issue. I don't see how our ties could be any stronger... I was born in Australia, my entire family is here, and my wife has lived here for most of her adult life (with me) and is now an Australian citizen. Our daughter was born here. The decision to leave Australia has nothing to do with 'weak ties' so to speak, it has to do with the desire to live and work in the country of my wife's origin, to spend time with her family, to experience all that. For an indefinite period, depending if we love or hate it in the US!

"Don't worry, USCIS won't see that, because you haven't done that."

This is the key feedback I've been wondering about - thank you. Are you saying that when I go to apply for the E3, the fact my wife has a pending immigrant visa petition lodged on my behalf will not matter? Why wouldn't they see this when they go to review my E3 application? Is it because I'm so early in the process and it's just a petition, rather than an approved green card?

"I guess I don't really understand your goal. The way you describe it, it sounds like you DO have the intent to move permanently to the USA. So there really is no argument to be had....unless by getting the E-3 you end up changing your mind and want to return to Australia at the end of it?"

No.1 goal = move to the USA quicker than the 6-8 (possibly even 12) month wait dictated by the permanent residency visa route (ie green card). Being sponsored by a US employer via an E3 visa looks like an attractive option for this, can be renewed indefinitely, and with a bit of work I know there are ways to adjust status to permanent resident in due course.

Thanks again for your answers, hopefully you have a better idea of our situation.

Re: Applying for E3 with a pending Green Card... help!
 

Thanks for your reply. Is there anywhere online where this is stipulated officially? So you're saying my potential E3 work visa application would be treated completely independently to my concurrent permanent residency visa application that's currently in progress?

Re: Applying for E3 with a pending Green Card... help!
 

Because we would like to move the United States to live and work, as that's where my wife is from and she has family there. I'm Australian, so need a spouse visa - a process which starts with an I-130 petition.

Re: Applying for E3 with a pending Green Card... help!
 

I don't know if it is stipulated anywhere, but as an observable fact, even in the small subset of visa applicants who are BE members, it is fairly common to have two simultaneous visa applications in process, of which one is a "non-immigrant" visa. I have never heard of the simultaneous visa applications causing a problem.

Re: Applying for E3 with a pending Green Card... help!
 

You seem confused as to whether you wish to immigrate or not, E3 is a non immigrant visa.

Re: Applying for E3 with a pending Green Card... help!
 

Not confused at all. We wish to move to the USA. Whether that's via an employment visa such as the E3 (which can be renewed indefinitely), or via permanent residency via an immigration visa (green card), we are just looking for the quickest option. And whether an E3 can be attained while a 1-130 petition is in process. That's the point of the post. Do you
follow?

Re: Applying for E3 with a pending Green Card... help!
 

Still not quite right. In your case, there is no permanent residency application. There is only an immigrant visa application. Once you have your immigrant visa in hand, and use it to enter the USA, you automatically become a US permanent resident. No application necessary.

Oh, that IS a lot quicker. Then by all means, start the E-3 route and use whichever one comes through first.

I was answering your specific statement of having a green card petition in process. USCIS won't see that, because you haven't done that. What USCIS will (or could) see, is that you have an I-130 petition in the system. That's not the same thing as a green card petition, as you know. Whether that will matter with following the E-3 process, I can't say. But you ARE allowed, as Boiler says, to have multiple petitions in the system at the same time, so I say go for it. If you don't get the E-3, you'll still have the Immigrant Visa route processing.

Rene

Re: Applying for E3 with a pending Green Card... help!
 

Great, thanks for your feedback.

Re: Applying for E3 with a pending Green Card... help!
 

I don't think so, no. The law only states what you can NOT do, not what you CAN do. If nothing says you can't do it, then it's possible. We've seen many such cases.

Yes. Two separate applications, two separate processes, two independent paths. USCIS can probably see them both, but they are treated independently.

Rene

Re: Applying for E3 with a pending Green Card... help!
 

You're welcome. :)

Re: Applying for E3 with a pending Green Card... help!
 

With respect, most people don't understand the concept of "dual intent". In a nutshell, just because dual intent is not specifically allowed, it does not follow that dual intent is specifically prohibited. In other words, almost all US visas (including the E-3) allow dual intent whether explicitly stated or not.

Ian