catlady_02

Yeah, that's another thing too, my LCA don't expire till mid next year, so the order things will happen are, assuming I don't go out of the country:

1) E-3 visa expire
2) apply for extension, will get a new I-94 and I797
3) old I-94 expire
4) apply for gc

right before my LCA expire, either

5a) no need to worry about any visa application because I'm in process of applying gc, no need to apply for a new LCA
5b) apply for a new LCA

6) GC approval

Am I assuming the things right above? so do I need to apply for a new LCA if my GC approval hasn't been grant before it expire?

emartin

??? Not at all. I'm purely referring to when catlady's "authorized stay" expires. I did not address her eligibility to work.

However, just because her visa expires does not mean that her LCA expires then also. If she has received an extension of status, for example, her employer would have needed to include a new LCA with the extension request.

She needs to ask the employer's lawyer, or whoever prepared her E-3 (assuming she has this) whether she needs an extension. There is not enough information for me to say.

docnetau

Except the two are the same thing (or at least, tightly related)! An E-3 based I-94 is based on your eligibility to work. The date on the I-94 is only one of the factors that sets when your "authorized stay" expires.

To use the example most people here understand, if you lose your job or stop working, are you still able to stay in the country until your I-94 expires without taking any other action (eg, requesting a change of status/etc)? Or do you have 10 days to "leave the country".

emartin

OK, there are different concepts involved. A person is "out of status" if they do anything that violates their authorized status, e.g. working without authorization or not working if their status requires it. Once a person violates status, they must leave the US or change to a different status, if available.

They "overstay" if they stay longer than authorized on the I-94, or another day if CIS determines this.

Being "out of status" and being an "overstay" have different consequences under immigration law.

In catlady's specific situation, she should ask the attorney who prepared the E-3 what her employer needs to do, if anything.

catlady_02

Hello emartin,

Thanks for your reply, the problem is, I don't know am I still eligible to work till the expiration date of my I94 even through my visa has expired.

or

am I "out of status" immediate after my visa expired?

docnetau

There's one other important thing to ask yourself - do you want to be in the US without a valid Visa? What happens if you have to make an emergency trip back to Australia? (Think illness/death in the family, etc).

You'll be allowed to leave the country, but you will not be able to re-enter the US without going through the full re-application process to get a new visa. Even if that process occurs without any issue, it could take weeks or longer to obtain what's needed, get a consulate appointment, etc.

This is the same reason I'd never even consider doing an E-3 extension, as opposed to applying for a new visa - I don't ever want to be in a position where I can't easily leave and return to the US if needed. A quick, planned trip up to Canada seems like a much more sensible option to me.

Obviously your exact circumstances may be different, and this may not be an issue for you...

catlady_02

Thanks docnetau, I understand that if everything work fine, than that would be perfect. However I read too many stories about refusal/reject of visa application at US consulate, or problems having at the POE. I personal got questioned for 3 hours at the POE when I first landed in America. Therefore I'm really afraid to visit a US consulate or got questions at the POE.

In both cases of getting a new visa now or emergency trip to overseas in the future, I will need to apply through a US consulate as a new application, luckily if I really need to leave the country, the US consulate I'm going to visit doesn't have a wait time, normally it's next day appointment, and I can get my passport back the day after (assuming I don't get a rejection), so that won't be an issue for me.

Now I only worry about my visa expiration, is it true that I am still legal to work in the state as long as my I94 and LCA hasn't expire but my visa has expired?

saran

You need a Visa only to enter the U.S. Once you are in the U.S, the date on the Visa is irrelevant. The date on the I-94 decides your legal status in the U.S.

Also, if you have applied for an extension with the USCIS and your case is pending, then you can stay in the U.S until your case status is resolved even though your I-94 expires.

In short, forget about the date on your Visa and apply for an extension with the USCIS before your I-94 expires. The processing time for E3 extension is around 3 months.

Hope this clear all your doubts.

....Saran.....

saran

Yes, If you are on E3 Visa, you can work in the U.S until the expiry date on the I-94. Visa date is irrelevant.

...Saran....

catlady_02

excellent! great thanks Saran, now I just need to stay for another 1 to 1.5 years than I'm free to go anywhere I want!

emartin

Unless the immigration officer gave the wrong end date on the I-94. This happens, and you can't rely on their mistake.

ozEcho

So this has also been a point of much discussion on this forum. What would be considered a mistake?

Some think that the Point of Entry officer should only give till the expiry date of the visa on the I94. Others believe that the issuance of 2 years from the date of entry is normal.

So is either a mistake?

docnetau

As I've said before, I'm one of those in that camp. I've entered the US a total of 21 times under E-3 visas, and every single time they have put the I-94 expiry as the same as my Visa.

A few of those times I've hit immigration staff who didn't know what an E-3 was, and as a result who have either lookup up the rules in their handbook, or called a supervisor (in person or on the phone) to confirm the details and the expiry. On one of the more recent entries I even got someone on his second day of the job, and I can distinctly remember he and his supervisor looking up the relevant rules in the handbook (I'm fairly sure the supervisor knew the rules, but was showing the new guy the process). That I-94, like all of my others, ended up with the Visa Expiry date on it.

ozEcho

Thats my understanding as well....

stark

Saran your advice to Catlady may be a little misleading.

The date on your VISA (Validity) is important and very relevant when it comes to travelling outside of the US. If you leave the US at any point during your stay, you will not be allowed to re-enter the US without a valid and unexpired visa. Which you can only obtain at an embassy outside of the US.

The date on the I-94 DOES NOT "decide your legal status in the U.S".

It instead is your Arrival Departure Record and shows your "authorized" length of stay.

This length can be very different to your visa validity, as "authorized stay" is at the discretion of the officer at POE.

There seems to be no consistency at POE and they may stamp your I94 dates in-line with your VISA (or less than based on discretion) or when you leave and re-enter any date they choose.

For me...first 2 times were the same as the VISA validity with the last 3 times at 2 years from the re-entry date.

Your immigration status as an E3 holder is based on you continuing to meet the LCA & E3 conditions and renewal requirements outlined by the US.

Your legal "alien" status is dependent on meeting this E3 criteria or changing your immigration status.

In short... do not just use the date of your I94 as your final defining understanding of legality.

Make sure you comply with the LCA, E3 or E3 renewal, Visa in passport & the I94 requirements AND If in doubt seek legal advice from a immigration attorney.