Tuesday, November 13, 2012

E-3 Visa to Green Card for Australians

This is a blog post I have looked forward to writing for some time. According to the US Government, I am now classified as a Lawful Permanent Resident of the United States, rather then the much more unfriendly title of Non Immigrant Alien. 5 years after moving to the US, I now have a green card. I think most understand the basic concept of a green card, in part thanks to the delightful rom-com "Green Card", featuring Gérard Depardieu and Andie MacDowell. I will however lay out some background on the green card, the implications of having a green card and how I obtained one from an E-3 visa without transferring to a H-1B visa or resorting to a sham marriage to an American citizen where hilarity ensued. In my case, I was able to obtain my green card in less than 12 months from the start of the process.

E-3 Visa Overview
The visa I have been living and working in the US on up until this point is the E-3 Visa, referred to officially as being a visa for "Certain Specialty Occupation Professionals from Australia". The E-3 is a fantastic visa which is relatively quick and easy to obtain if you have the right background, experience, qualifications and of course a US based employer that is willing to sponsor for an E-3 visa. It is also a requirement to be an Australian citizen, which includes naturalized Australian citizens. The E-3 has some advantages over the much more common H1-B visa, namely that the spouse of an E-3 worker is granted an E-3D (D for Dependent) visa that allows them to work once an Employment Authorization Document (EAD) is obtained. The visa is renewable indefinitely for up to two years at a time. The downside is that the because visa is only valid for two years, it requires a trip outside of the US to a US embassy to renew the visa for both the holder of the E-3 (Primary Beneficiary) and any other family members (Dependents) on an E-3D. As with all employment based visas, a change in employer requires a transfer of the visa or obtaining a new visa, which also necessitates a trip out of the country. My previous post covers some of the mechanics of a renewal.  

E-3 Visa and Dual Intent
Much is made of the E-3 visa's status as a non dual intent visa. A dual intent visa officially provides a path to permanent migration. A non dual intent visa is the opposite, considered a temporary visa that is granted on the understanding that the individual will either return home or obtain another temporary visa at the conclusion of their current visa. One of the conditions of the E-3 visa is that the applicant must show ties to Australia. In reality, I've never been asked question related to this in my visa interviews, but just in case I have taken bank statements showing money in Australian accounts. 

memo on this topic was issed by the USCIS (United States Citizen and Immigration Services) and states the following:
"...an E-3 nonimmigrant shall maintain an intention to depart the United States upon the expiration of termination of E status. An application for initial admission, change of status or extension of stay in E-3 classification, however, may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition."
What is odd about this directive, is that it effectively contradicts itself. However it does show that you cannot be discriminated against in E-3 application and renewals based on having lodged paperwork with the US Government applying for permanent status. I have not required an E-3 visa renewal while in the middle of getting a green card, as I was able to complete the process within the current two year validity period of my E-3 visa. Some immigration forums show Australians stating they've been able to renew their E-3 while applying for a green card, but I can not personally attest to this fact. 

Why did I want to get a Green Card?
Feel free to skip this section if you don't know me personally and are more interested in the process. My wife is English and we met in Sydney. I got on a plane literally the day after our wedding to fly to the US to interview for a job, which I was successful in landing. We really liked Sydney, but came into the move to the US with an open mind. If we didn't like it here, we could always move back to Australia or even England. Thankfully the US and in particular the Bay Area quickly became our home. Great weather, lovely people, amazing job opportunities and relative to Sydney a much lower cost of living; what's not to like? I also think there is something to be said for a newly married couple moving country and together discovering all the new experiences that come with relocating. We have since had our son here which makes him a US citizen and bought a house. The intention for sometime has been to make the US our permanent home. On an E-3 visa, it is impossible not to have the temporary nature of the visa constantly in the back of the mind. The E-3 also limits job flexibility, as it is necessary to convince a company to not only hire you, but to lay out thousands of dollars in legal and filing fees to sponsor the visa. I can't do justice to describing what a sense of relief and elation I have from knowing that I have secured my family's future in the US with a green card.

What does it mean to have a Green Card?
Before I go into the process, I want to start with describing the green card and what it means to be a green card holder. The green card is technically known as the United States Permanent Residence Card. It is a government issued photo ID that is used as evidence to show that the holder has been granted immigrant rights to the US. Essentially this is the right to live and work in the US on a permanent basis, including the ability to leave and enter the US using the green card. The green card is valid for 10 years and may be renewed indefinitely, provided the holder continues to satisfy the requirements. The green card will be considered abandoned if the holder moves to another country with an intention to live there, spends more than a year outside the US without applying for a re-entry permit or spends more than 2 years outside the country without applying for a re-entry visa. The green card provides a path to US citizenship after 5 years. Green card holders are subject to deportation for committing certain major crimes. It is a requirement for the green card to be carried by the holder at all times.

The biggest implication of obtaining a green card is that in order to maintain the green card, the holder is taxed on their worldwide income. If for instance I was to move to another country temporarily, in order to maintain my green card I would need to continue to file state and federal tax returns. Tax treaties exist with many countries such that double taxation does not occur, but if the place I move to does not have income tax, I would still be required to file US tax returns and pay US taxes. Also since the Heart Act passed in 2008, foreigners that choose to relinquish their green card will be subject to an expatriation tax if they have had the green card for 6 out of the past 15 years. This is massive for anyone with foreign incomes or investments, because expatriate tax may be charged on unrealized gains over $600,000. These may be negatives factors for some, but they are far outweighed by the positive benefits in my opinion. I usually advise Aussies that are not convinced they want to stay in the US permanently to simply stay on the E-3. Pursuing a green card is not a decision to take lightly.

Do my family also get a Green Card?
Short answer, yes. Spouses and unmarried children under 21 are included in the final stages of the green card application as beneficiaries of the primary applicant and should receive their green card in parallel.

Is it possible to travel internationally during the green card process?
There is a time period of anywhere between 3-9 months that it will not be possible to travel internationally. I will detail the intricacies of this restriction further down.

Can I change jobs during the green card process?
Yes, but only after 180 days from submission of paperwork to adjust status. This is known as AC21 portability.

Green Card Applications Concepts
There are some key concepts regarding the green card that need to be understood before going into detail on the process. The first is regarding the type of green card applications. There is an option for family based migration, where a US citizen relative sponsors the green card application. This post is focused on employment based immigration, where an employer is the application sponsor.

There are 5 levels of green card application, dependent on the job level, skills and qualification of the person applying. The categories are from EB-1 to EB-5 (EB = Employment Based):
  • EB-1: Extraordinary Ability. Assume that you require a PhD and peer review published papers to satisfy the requirements for EB1, or a company executive with sufficient level of responsibility. 
  • EB-2: Advanced Degree or Equivalent Experience 
  • EB-3: Skilled Professionals and other Workers
  • EB-4: Special Immigrants such as Ministers, Religious Workers, US Government Employees
  • EB-5: Investors
I applied for an EB-2, as I have an MBA and 10 years experience. The level is important, as for EB-2 the wait time is mostly related to processing, whereas for an EB-3 the wait is at least 6 years. Incidentally, anyone that told me doing an MBA was a waste of time can tell that to the piece of green plastic I carry in my wallet that allows me to live and work in the world's largest economy. An important point which I will discuss later, is that the level of the green card is not just dependent on the qualifications and experience of the applicant, but also the minimum requirements to be able to fulfill the duties of the work position.

In addition to the level of the position, the country of birth of the applicant is important. Unlike the E-3 visa, where an Indian born Australian citizen could apply, for the green card there is the concept of chargeability, which dictates that the application must be filed under the country of birth. The broad categories for chargeability tracked are India, China, Mexico, Philippines and Rest of World (Which includes Australia). The reason they are split this way, is that the law does not allow anymore than 7% of the total green cards visas available in a given year to be allocated to any one country. The majority of visa applicants are from India, which means they have waiting times up to 8 years in EB-2 and below. Compare this to an Australian or someone else in the rest of world category and the waiting time is mostly related to just the processing of the paper work.

How are waiting times determined?
Applications for a green card are more or less processed on a FIFO basis. There are two concepts that need to be understood in order to be able to determine green card processing time. First is the concept of a priority date. This is the date the Permanent Labor Condition paperwork is submitted, which I will talk about later. The priority date determines where you are within the process relative to other applications. The other important concept is whether a green card visa category is current, retrogressed or unavailable. Current means that there are visa numbers available and the application will be processed according to regular processing times. Retrogressed means a date in the past has been set that determines whether an application will be processed or not based on the priority date. For example, if I had a priority date of January 1st, 2012 and the date for my category had been retrogressed to July 1st, 2011, my green card application would not be processed, as my application priority date means I am not current for my category. This indicates that no applications newer than the priority date will be processed. If the date moved forward to February 1st, 2012, this means I would be current and my application would be duly processed. Higher demand categories such as EB-3 China and India may become completely unavailable where no applications are processed.

So of course the question can be asked, why is the process managed this way? It is the method used by the USCIS to manage demand for a finite number of green cards. There are a total of approximately 145,000 green cards per year. EB-1, EB-2 and EB-3 each get 41,455 visas with EB-4 and EB-5 getting 10,291. Within the year, any unused visas within the higher categories trickle down to the category below. The fiscal year for visas runs from October-September. The yearly quota is reset every year on  1 September.

The dates are communicated by USCIS via a published document called the visa bulletin, which is on the USCIS website. The changes in priority date for the upcoming month are published in the first or second week of the prior month. For example, the latest December bulletin was published on 7 November.

The Green Card Process
So now that I have covered the background, I can go into some of the specifics of the process of applying. Obtaining an employment base green card consists of the following steps:

1. Permanent Labor Certification - PERM ETA Form 9089
     a. Job Description
     b. Experience Letter
     c. Prevailing Wage - ETA Form 9141
     d. Recruitment
     e. PERM Submission
2. Immigrant Petition - Form I-140
     a. Medical Exam - Form I-693
     b. Biometrics
     c. Advanced Parole I-131 and Employment Authorization Document (EAD) I-765
3. Adjustment of Status - Form I-485
4. Receive Green Card

1. Permanent Labor Certification - PERM
The LCA (Labor Condition Application) completed for an E-3 and the PERM process are very similar. There are however some slight differences and the PERM is more involved than the E-3 LCA. Similar to the E-3, this step is about validating that position being performed is suitably specialized in nature to justify a visa. This is submitted electronically by the employer to the Department of Labor (DOL). There are a few sub steps involved within this stage that need to be completed before the actual submission.

a. Job Description - It is necessary to define exactly what the duties and requirements of the role will be. It may be prudent for the job description to be slightly different than the one used for the E-3. The important point as mentioned is that an applicant's position as an EB-1, EB-2 or EB-3 is determined by the requirements of the role, not necessarily the qualifications held by the individual. It is possible that a  PhD holder could be applying in an EB-3 category if their position did not justify the PhD requirement. It is also necessary for the job description to not seem overly tailored towards an individual or excessive with regards to the minimum requirements. This is where the experience of a good lawyer pays for itself. They can advise on how to make the job seem broad, while also having some specificity towards the applicant. The implications of getting the job description wrong, could be an audit on the PERM which will add at least 6 months to the process and potentially even rejection of the PERM. If the requirements regarding experience and qualifications are too narrow and specific to the individual applying for the green card or viewed as unnecessarily onerous, the DOL will object, or can state that some of the experience items can be learned on the job. In my case, despite having over 10 years experience, we listed the job as only requiring 3 years experience. There is also an issue whereby the work experience for claiming the number of required years has to have been gained outside of the current job with the sponsoring company. For example, with my last company I had 5 years experience in Australia and 2 years in the US. However the 2 years in the US were with the company sponsoring the green card, so the job description could not require 7 years or it would exclude me. The job requirements themselves have to be specific and verifiable. Having items like "self starter" or "good communication skills" is not useful. In my case, we focused on the technical aspects of my job, as they are easy to verify. The requirement for an MBA and business experience was almost secondary, but still important to include.

b. Experience Letters: It is a requirement to obtain letters from previous employers that validate the applicant's experience. Even though these are actually not required until the I-140 stage, it is prudent to get this step completed early. This is to ensure that the previous employers are willing to provide the letters and the items they will attest to line up with what has been documented in the job description. The letters must be on company letterhead. Many large companies do not allow their managers to write recommendations or references. In asking for these letters from former managers, it helps to point out the letter is neither a reference or recommendation, simply verification of job role to be used for one specific purpose. Again, can't praise my immigration lawyers enough for drafting these letters for me and making sure everything was kosher.

c. Prevailing Wage: Similar to the E-3, the employer must demonstrate that they are paying the prevailing wage based on the job classification. If the employer is paying less than the DOL determined prevailing wage, this will be a problem. Will once again point out the usefulness of an experienced lawyer to get this part right.

d. Recruitment - The burden of proof is upon the employer to show they took reasonable steps to ensure there were no suitably qualified US citizens capable of performing the duties of the green card role. This is why getting the job description right is so important, because the employer is required to advertise the position. The primary method of advertising is to run a job ad in a newspaper on 2 different Sundays. The job must also be posted internally for 10 consecutive business days. There are then options around 3 other locations the job must be advertised, such as the company website and other job search websites. My lawyers seemed to understand the art of the most obscure ways to advertise the job that wouldn't be questioned by the DOL. In my case, all the advertising was run within a 2 week period. Provided the advertising is completed no more than 180 days before submitting the PERM and no less than 30 days, it does not particularly matter when they are run. So at the completion of the 2 week period of job ads, I had to wait 30 days prior to submitting the PERM. All up we received around 50 applications. It is then the job of the hiring manager to review each of the applications. There are obviously some applications that are close to fitting the requirements, so the hiring manager documents the reasons why these people would not have been a fit for the job. This is recorded in a recruitment report that is submitted with the PERM.

e. PERM Submission - The PERM is submitted electronically. The processing time for the PERM to be processed is located here. The processing time is currently about 3 months without an audit, with an audit adding 6 months. I was lucky enough to get through without an audit and it took my case only 2 months. My lawyers said that around 50% of applications are getting audited these days, sometimes due to concerns with the application, but more often randomly. There has been concern about some applicants faking qualifications in order to apply for EB-1 or EB-2 green cards, which will only increase the amount of scrutiny. The date of PERM approval is the priority date used for calculating the place in the queue for the next steps.

2. Immigrant Petition - I-140
The PERM process can be undertaken at any time once all the pre-steps have been completed, but the I-140 and I-485 can only be submitted when the visa is current. Unluckily for me, my PERM was approved in June and the visa bulletin for July indicated that the visa was about to become unavailable  in the next month. This means that I could submit my paperwork, but I had zero chance of getting a visa until visa numbers became available again. The I-140 and I-485 are usually filed concurrently. The I-140 is the petition for an alien immigrant worker. This is effectively the employer asking the Government for permission to employ the applicant as a Permanent Resident. The I-140 can be submitted with premium processing for a fee, which means a response is provided within 15 calendar days. In my case, the response was a Request For Evidence (RFE) around some details of my company's financials. In total it took only 25 days for my I-140 to be approved. This and the I-485 applications are submitted paper based. They are all sent to single address, which then decides which service center to distribute the application to. I believe all Californian EB-2 cases are sent to Nebraska. The receipt notice that is mailed will show which service center is responding.

a. Medical Exam - Prior to submitting the I-140, a medical exam must be performed by a civil surgeon. A list of civil surgeons can be found here. This a basic health check, skin test for signs of Tuberculosis and check that immunizations are up to date. I did not have immunization records from Australia that could be used, so they run a blood panel to establish which are required. In my case just the chicken pox vaccination. This is a 2 shot immunization 10 weeks apart, but it is not necessary to wait for both shots to be administered before the medical approval is provided. The civil surgeon will complete form I-693, sign it and place it in a sealed envelope that is not to be opened. They also provide a copy of what has been placed in the envelope. I had a sense that my PERM approval was close, so I completed the medical exam and gathered all my documents together ahead of time to ensure a minimal gap between PERM approval and filing for the next stage.

b. Biometrics - Photos and a comprehensive set of finger prints are taken during the process. A notice is sent informing where and when to go to complete the biometrics. My wife and I were sent to a USCIS office in San Francisco. This was very low hassle. Walk in and out within 45 mins.

c. Advanced Parole and EAD - Advanced Parole is permission to enter and exit the US. It is issued to non immigrants that are in the process of applying for permanent status. The EAD is an Employment Authorization Document. It authorizes a non immigrant to be employed in the US. As an E-3 visa holder, an EAD is not required until after a PERM has been approved. An E3-D requires an EAD to be employed in the US at any time, but this gives them the authority to work for any employer, rather than being limited to the sponsoring employer like a primary E-3 holder. It took my wife 3 months to receive her EAD after we initially arrived in the US, so factor that in any plans to relocate to the US.

From the time that the PERM is submitted, until when advanced parole to travel is granted, travelling overseas is not allowed. In reality it is likely possible to get back into the US after a overseas trip. However there is a risk that if the case is audited and an analysis of your US entry and exit is performed, by entering while a PERM is in process clearly shows immigration intent. This could be grounds to deny the application. My lawyer suggested many times that the easiest way to avoid this issue is to transfer to a H-1B visa. Given my wife works, this was not an option as it would have invalidated her E-3D and meant she would have had to either obtain her own H-1B, or stop working given she would be in the country on a H-4 visa that does not allow employment. So with the PERM taking 2 months then then the application for Advanced Parole taking another 30 days, there was a 3 month period that I was grounded in US. I believe if my PERM had been audited, then I would have been further delayed in receiving the advanced parole and EAD, as I am reasonably sure the PERM needs to be approved prior to applying for EAD and Advanced Parole. The EAD will be applied for at the same time as the advanced parole and in fact they are both on the same card, with the words "Serves as I-512 Advanced Parole" on the bottom of the EAD card. The EAD in theory allows employment with any employer, but moving employer is not possible prior to hitting 180 days of waiting time following submission of I-140 and I-485 (AC-21 Portability). There is a strange limbo state between commencing adjustment of status and receiving it where effectively the E-3 visa is no longer valid, meaning the EAD is being relied upon to be legally allow to work, with the advanced parole being used to allow legal entry to the US.

Travelling on Advanced Parole - I only re-entered the country once using my advanced parole. My advice is to demand to be sent to secondary processing immediately upon arriving at US immigration, as the likelihood of a first level immigration agent messing up is much higher. Apparently H-1B visa holders with advanced parole have the option of choosing whether to re-enter the country on the existing H-1B or on the Advanced Parole as a parolee. On an E-3, entering the country on that E-3 rather than as a parolee will likely kill any chance of getting a green card, given there is clear evidence the visa was used to enter the US with intent to migrate. It is not really any different to enter as a parolee, they just use a different stamp in the passport. I had my EAD/AP card with me, but also had other documentary evidence such as a letter verifying my employment, last 3 pay slips and confirmation notices for submitted paperwork from USCIS.

3. I-485 - Adjustment of Status 
Although the I-140 can be completed in 15 days or less, the I-485 takes far longer. This is an application to adjust the applicants status from a non immigrant to a lawful permanent resident; the final step in the green card journey. In the case where there is a visa number available, the current processing time for I-485 is approximately 4 months based on the priority dates published on the UCSIS site. However as I mentioned, my application was submitted in June and the visa became unavailable in July. Although new visa numbers were made available in October, a very conservative approach was taken by UCSIS to setting the priority date, meaning my application was still not current. In November the entire category became current. The advice from my lawyer was that if I had not heard anything from USCIS about my case within a few months of submission, that it was likely the case had been pre-adjudicated and they were simply waiting for the visa number to become available. There is no way to tell if this is the what has occurred. The theory being that if a no request for evidence has been received, no interview scheduled and a notice of intent to deny has not been issued, then not hearing anything after several months is a good sign that everything with the application is ok. Once the category became current in November, it took only 8 days for me to find out that my I-485 had been approved. There are 3 others in my office in the same situation that found out even sooner in the month. My wife's I-485 was approved within about 10 mins of mine.

4. Receive Green Card
In all honesty, this has not occurred yet. Uncle Sam assures me they are in the post. Should receive them in the next few days and will update if there is anything of note here. I believe I am supposed to get a USPS tracking number at some point.
[Update 19 Nov 12] The official correspondence from USCIS will state that the green card may take up to 30 days to arrive. I got mine in around 6 business days after I-485 approval. USCIS will update the tracking through their website to advise when the cards have been sent. I still had a text message notification set for any changes in status of my case. My advice is to remove this once you receive confirmation that the I-485 has been approved. A lot of messages come through after the I-485 approval, many of them of no use. For example, I was sent a notice that my green card had been sent, which was then followed up with a message telling me that a notice telling me my green cards have been sent has been sent. Unfortunately the later message was sent as a text at 3:30AM X 2, because the same happened to my wife's case. Switch the settings to instead rely on the email notifications. The flow shown on the USCIS website will jump back and forth a few times from the final stage (Card/Document Production) and the third stage (decision) several times. This is normal. The site did not inform me that the green cards had been delivered until sometime after they were actually delivered.

Other random stuff

Adjustment of Status vs Consular Processing
At the I-485 stage, it is possible to decide whether to apply for the green card via adjustment of status (as I did) or consular processing. Adjustment of status makes it possible to get the green card without leaving the US. Consular processing is where the green card is issued at a foreign consulate, so is more designed for people that are not already in the US. The danger with opting for consular processing, is that if the case is denied while out of the country, it is more difficult to appeal the decision and it will not be possible to travel to the US while any appeal is processed. Consular processing can actually be slower than adjustment of status, so is not recommended.

Why didn't I get my green card earlier?
I was with my previous company for 3.5 years and made 3 attempts at completing the PERM process during this time. Sadly my moving here coincided with the global financial crisis, so the company I was working for had the need for layoffs on a few occasions and was also acquired during that time. Layoffs are a big red flag to the DOL when it comes to the PERM process, as it is difficult to claim a need to hire a foreign worker while in the process of making US citizens redundant. We had to withdraw the application, wait 6 months, then attempt the process again. However I was never able to get through the first step of getting a green card with the PERM. The 3.5 years in the US count for nothing when I started the green card process at my new company, so I was pleased to be able to wrap it all up in under 12 months.

Green Card Lottery
There is another path to a green card called the green card lottery/diversity visa. There are 55,000 visas per year available on a lottery basis to countries that are considered to have a low immigration rates to the US. There are no education or work requirements as part of this process. In all honesty, I wish I had applied for the green card lottery every year since I moved here. Aussies have a high success rate given there are so few that apply. I have met several people that obtained their green cards this way. I didn't expect it to take me 5 years to get my green card through the employment based means. Applying for the green card lottery does not seem to cause any issues regarding dual intent.

How do I track my case?
The USCIS tracking website is quite good. An account can be created and all cases to be tracked can be entered and saved in a profile. There are options to send emails or text messages based on any changes to the status of the case. I also really liked using Trackitt, where people enter information about their own cases. This provides a rough feel for what is going on with approval of cases with similar priority dates. Details of my case are here.

Other resources
Immigration lawyer newsletters are useful for commentary and prediction of priority date movement. My favorites are Murthy and Capitol Immigration.

My Other Immigration Posts:
How can an Australian get a job in the USA?
E-3 Visa Renewal in Mexico City