When immigrating to the U.S., one of the first questions you will have to ask yourself is this: which visa should I choose? There are all kinds of nonimmigrant visas out there for a wide variety of people and situations. While, ultimately, it comes down to your unique immigration circumstances when choosing, you can use this post as an introduction to the L-1 and E-3 visas to make a more informed decision about your case.
What is the L-1 Visa?
Let’s start with the L-1 visa. This common nonimmigrant visa is meant for multinational employers to be able to transfer employees from a foreign location to a U.S. location. To be considered a multinational employer, it must have a branch, subsidiary, affiliate, parent, or office located in both the U.S. and the beneficiary’s home country. There are two subcategories for the L-1 to consider.
The L-1A is meant for the managers and executives of multinational companies. To qualify for this visa, you need to be a manager or executive as defined by the USCIS.
Manager – the multinational manager oversees the day to day activities, wages, and employment status of employees or oversees the daily functions of a departments.
Executive – the multinational executive makes far-reaching and important decisions without substantial supervision or oversees a group of managers.
If you are granted an L-1A, you will be able to work in the U.S. for your multinational employer for an initial period of three years with the possibility to extend it to a maximum of seven years.
One of the major benefits of an L-1A visa is the fact that you can come to the U.S. with the intention of establishing a branch or office where none previously existed. However, in this case, you will only have an initial period of one year before you need to submit a business plan and report to get an extension. As a tip, be sure to hire some U.S. workers during that first year, which will go a long way toward securing your extension.
The L-1B is for employees with specialized knowledge. This means that you must have a unique understanding of your employer’s industry, structure, or operations that makes you essential to the successful operations of the business. Unfortunately, this is a relatively vague specification, and this ambiguity has led to an increase in L-1B rejections.
With an L-1B visa, you can stay in the U.S. for an initial period of three years with the opportunity to extend it to a total of five years. Unfortunately, there is no way to extend your period of stay past the five-year maximum. Also, you cannot use the L-1B to open a new location in the U.S. L-1B visa holders may be hired at the new location once it has been established, however.
An additional thing to note is the fact that an employer can file a blanket petition for multiple L-1 employees rather than have one petition filed for each employee.
What is the E-3 Visa?
While the L-1 visa is often compared with the H-1B visa, there are some instances where you may be able to decide between the L-1 and the E-3 visas. The E class of nonimmigrant visas is specifically tailored for the nationals of countries that hold a treaty of trade and commerce with the U.S. The E-1 is for treaty traders and the E-2 is reserved for treaty investors. However, the E-3 takes a different approach. It is designed for Australian citizens with specialty positions.
Essentially, the E-3 serves as an H-1B visa for immigrants who are from Australia. The requirements are very similar, though the E-3 does not have an annual cap and so petitions submitted under this category are not entered into a lottery. Here are the official requirements according to the USCIS. You must:
- Be a national of Australia
- Be offered a specialty position by a U.S. employer
- Have the education, certification, or credentials necessary to perform the job.
Just like the H-1B, you will need to have your sponsoring employer obtain a Labor Condition Application (LCA) on your behalf. To get the LCA, your employer needs to make four attestations:
- The current employees have been notified of the intent to hire you.
- Your employment will not have a detrimental effect on the current employees
- You will be paid at least the prevailing wage for your position and geographic location
- A strike or lockout has not taken effect at the proposed job location.
Once your petition is approved, you will be granted an initial period of stay of two years with the opportunity to extend it indefinitely in two-year increments.
L-1 vs E-3: What Are the Main Differences?
So the question is. If you are an Australian national who is employed as a manager, executive, or specialized employee with a multinational company, which visa is the best option? Choosing between the L-1 and the E-3 must be decided on a case-by-case basis, so be sure to work alongside your immigration attorney to determine which would be best for your situation. However, here are some things to consider when making your decision.
One of the major differences to take into account is the disparity in price. The L-1 requires a much greater financial investment than the E-3 on the part of your employer.
- $460 basic I-129 filing fee
- $500 anti-fraud fee
- $4,500 fee for Public Law 113-114 (this is only necessary if your employer has more than 50 employees with more than half of those employees on L-1 or H-1B status.
- The ACWIA Training Fee can range from $750 (if your employer has fewer than 25 employees) to $1,500 (for 25 or more employees)
- $190 DS-160 fee (this is only necessary if you are going through consular processing)
This brings the total cost to you and your employer $1,900-$7,150, which becomes a pretty steep price. However, it is important to note that the only fee that you, the beneficiary, are responsible for is the DS-160 fee and that fee is only necessary if you are using consular processing as opposed to changing your status.
- $460 basic I-129 filing fee
- $190 DS-160 fee
So the total E-3 cost is $650, substantially less than even the low end of the L-1 fees. Again, the beneficiary is only responsible for the DS-160 fee if applicable. For both the L-1 and the E-3, you can opt for the premium processing service, which will expedite your I-129 petition processing time from a six-month average to just 15 calendar days. The fee for this optional service is $1,440 and is payable by either you or your employer.
One other major difference between the L-1 and E-3 visas is the amount of time that you can stay under each status. The L-1A and L-1B both start with an initial period of three years, though the L-1A allows holders to extend to seven years while the L-1B only allows a maximum of five years. There is no ordinary way to extend your stay past these maximums.
On the other hand, the E-3 visa begins with an initial period of two years with the ability to extend it in two-year increments. However, there is no limit to the number of extensions you can receive, essentially allowing you to stay in the U.S. indefinitely as long as you continue to work as an E-3 employee.
Portability is the ability to transfer your status from one employer to another. For the E-3, you are able to easily transfer your status to a different eligible employer, provided that you are still working in a specialty occupation. All you need to do is have the new employer file a new I-129 petition for you.
The L-1, on the other hand, does not allow holders to work for any other employer besides the one that sponsored you in the first place for your L-1. This can be very restricting and if you were to lose your job with your employer, you would need to return to your home country immediately. If that were to happen on E-3 status, you would be able to seek different E-3 employment.
How to Get a Green Card Through L-1 or E-3 Status
For many, the end goal of their visa is to immigrate permanently to the United States. They do this by obtaining an immigrant visa, otherwise known as a green card. You can get a green card either by applying for one outside the U.S. or adjusting your status while under a nonimmigrant status.
Are the L-1 and E-3 Visas Dual Intent?
The USCIS has a category of visas that it labels “dual intent” visas. These visas allow the holder to apply for lawful permanent residency (green card) without jeopardizing their status. Some of the more popular visas, such as the H-1B or the O-1, are considered dual intent. The L-1 also fits in this category. However, the E-3 is a bit more complicated.
The USCIS officially states that “E-3 visas are not dual intent visas in the sense of H-1B visas and L-1 visas. However, an application for initial admission, change of status or extension of stay, 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.”
It may seem like a lot of jargon, but, in essence, the statement indicates that, while E-3 holders are discouraged from pursuing green cards while under nonimmigrant status, it may not have any negative effect on your current status if you do decide to apply for permanent residency. In our experience, the USCIS takes this on a case-by-case basis. Speak with your immigration attorney to determine how your situation will be affected by this.
How Do I Get My Green Card?
Because the E-3 can be tricky, we will focus on how best to obtain your green card from L-1 status. Your attorney should be able to help you get a green card from E-3 status.
To get an employment-based green card, you will need to have your U.S. employer (either your current employer or a new one) file an I-140 petition on your behalf. The I-140 is necessary for all employment-based green cards, but to file this petition, you may need to first have a PERM Labor Certification.
The PERM is required for the following employment green cards:
- EB-2 (without National Interest Waiver)
Because most immigrants who adjust their statuses from L-1 visas apply for the EB-2 or EB-3, it is likely that you will need to get a PERM before having your I-140 filed. The PERM will require your green card employer to perform a recruitment session for your job lasting 30 days. This is to ensure that no qualified U.S. workers are available to fill your position.
Once you get the PERM and the USCIS receives the I-140, that date will become your priority date. You will need to watch the monthly visa bulletins released by the Department of State and check the “final action dates” given in your category and country. Once that final action date matches your priority date, a visa number will be made available and you will be able to adjust your status with the I-485.
It is important to note that some countries and green card preference levels will take several years before their green cards are current. So the processing time to get from an L-1 to a green card varies widely.
Also, while it may seem as though the L-1A is the perfect visa to transition to an EB-1C green card for multinational executives and managers, there is a catch. To qualify for the EB-1C, you need to have worked for your employer’s foreign branch as an executive or manager for at least one continuous year in the three years leading up to your EB-1C petition. This means that, if you have been living in the U.S. for several years under L-1A status, you would need to return to your home country and work for your employer there for one year before becoming eligible.
L-1 Visa vs E-3 Visa – What is the Verdict?
If you are in the unique situation where you can choose between the L-1 and E-3 visas (i.e. a manager, executive, or specialized employee from Australia), you may be wondering which one to choose. On one hand, the L-1 is an official dual intent visa, allowing you to pursue your green card without issues. On the other hand, the E-3 visa is much less expensive and allows you to extend your stay an indefinite number of times.
Ultimately, however, the decision will be dependent on your case. Each person’s immigration situation is unique and the correct choice will vary based on the specifics. For example, if you are interested in getting your green card, the L-1 may be a good choice. Or, if you are a specialized employee, the E-3 may be the best bet.
How Our Immigration Attorneys Can Help
Choosing the right visa can be one of the most difficult decisions you’ll make along your immigration journey. A visa, whether its immigrant or nonimmigrant, represents a substantial investment of time and funds both on your part and that of your employer. It doesn’t matter if you are pursuing an L-1 or an E-3 visa, hiring an expert can help you protect your investment.
Here at SGM Law Group, our highly-experienced team of attorneys has decades of experience helping people from all over the world choose and acquire the visa that best fits their situation. We take care of everything from filing the petition to addressing any obstacles such as RFEs so that you can focus on more important issues.
To get a hold of one of our visa attorneys and put your case in the right hands, you can fill out this contact form and schedule your consultation today.