Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
I live in Sydney and an American company is offering my husband a professional job and a work visa. I’m eligible to receive a visa and a work permit under my husband’s visa. Can I form my own startup with that dependent visa and work permit or do I need to find a job with an American company? How long would we be able to stay in the U.S.?
— Aspiring in Australia
Dear Aspiring in Australia:
Congrats on naming your desire and stating your intention to start a company. That’s exciting!
Based on your question, it sounds like the company is sponsoring your husband for an E-3 visa for Australian professionals, and you would be eligible for a dependent E-3 visa and employment authorization document (EAD), also known as a work permit. Recently, I’ve been getting a lot of questions from spouses about dependent visas and working. Check out my podcasts on dependent visas and specifically about the E-3 visa for additional information.
There are even special recruiters in the Bay Area focused on placing Australians in roles with tech companies, because the E-3 visa is so easy to obtain. (I have no financial relationship with this company; but I think it’s a cool idea that people should know about.)
The fact that your husband’s employer is offering an E-3 visa is great news for you. If your husband’s new employer would have sponsored him for an H-1B visa, you would not be eligible for a work permit right away. The spouse of an H-1B visa holder on H-4 status can only apply for a work permit after immigration officials have approved a green card petition for the primary H-1B visa holder.
Unlike a work visa, a work permit is not tied to a specific employer. That means you can legally work for any company — even your own startup — with a valid work permit. Once you arrive in the U.S., you can apply for an EAD by submitting Form I-765 to U.S. Citizenship and Immigration Services (USCIS) along with evidence of your and your husband’s immigration status, a marriage certificate and passport photos. You can start working once you receive your work permit, which can take anywhere from one to 10 months for USCIS to process. Although the public offices of USCIS have been closed due to the COVID-19 crisis, USCIS continues to process applications. All USCIS public offices are scheduled to reopen on June 4.
Your E-3 dependent visa will be valid for as long as your husband’s E-3 visa is. One of the benefits of the E-3 is that there is no limit on the number of times the E-3 can be extended. However, the E-3 visa is a nonimmigrant visa, which means the holder does not intend to permanently live and work in the U.S. Keep in mind that immigration officials may start to suspect that your stay in the U.S. may be permanent with each subsequent E-3 renewal, so it’s best to work with an immigration attorney to navigate this process if you begin to set down roots in the U.S. and want to explore other possibilities.
Most U.S. embassies and consulates have halted routine visa and green card processing due to the coronavirus pandemic and international travel restrictions. When things reopen and you and your husband go through consular processing for your E-3 visas, you will have to demonstrate that you intend to eventually return to Australia and that you retain ties to Australia, such as a residence there. If the consular officer suspects you intend to apply for a green card once you arrive in the U.S. or that you will pursue activities that indicate you want to become a permanent resident, the officer could deny the visa application. Moreover, when returning to the U.S. from travel abroad, a customs officer may deny your admission to the U.S. based on the same conclusions.
Even though the E-3 is a nonimmigrant visa, that does not mean you cannot apply for a green card. But this is something around which to proceed very cautiously and strategically so you don’t run afoul of immigration laws. For example, filing for a green card too soon after you arrive in the U.S. on an E-3 visa could be determined to be immigration fraud; and an application for an E-3 extension within the U.S. with USCIS could be denied if there is a pending green card. So, talk to an attorney.
If your attorney were to one day advise that a green card is possible, there are different ways people can get green cards. If you and your family were to one day decide to seek permanent residence (green cards) in the U.S., you could either apply for a green card from within the U.S. through the adjustment of status process or you can return to Australia and apply for a green card at a U.S. consulate. Filing your own green card petition from within the U.S. would offer the most flexibility and the ability to continue working uninterrupted in the U.S., but there are important timing considerations to take into account.
As long as you or your spouse were born in Australia, you can apply for a green card under the Diversity Immigrant Visa Program. Every year 50,000 green cards are reserved for immigrants from countries that have low rates of immigration to the United States. Australia is on the list of eligible countries. The diversity program is administered by the U.S. Department of State (DOS) and offers a quick path to a green card for immigrants and their families.
DOS randomly selects recipients for the diversity visa in a lottery. The registration period for the diversity green card lottery typically runs from early October through early November. DOS distributes the diversity visas among six regions and no country can receive more than 7% of the available visas in a single year. Winners are typically announced in May.
If you’re selected in the lottery, you’ll be notified when you can submit your diversity green card application. Make sure to submit your application promptly as DOS selects more candidates than there are visas available. If you’re not selected in the diversity lottery, you can apply the following year.
You and your family can apply for diversity green cards in parallel to applying for other green cards either through your startup, your husband’s employer or by self-petitioning. There are also many other green card options that would be available to you, including self-sponsoring employment-based green cards.
Let me know if you have any other questions. Good luck!
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.