UPDATE 29 JUNE 2022: The US Consulate Sydney has recently reopened, and the wait time for an E-3 interview is now around 3 months. While still a relatively long wait compared to pre-Covid times, this may result in the E-3 once again being favoured over the L-1.
For an Australian citizen employee, a company would rarely consider an L-1 over an E-3, historically. This is due to the unique advantage that the E-3 visa has being a non-petition based visa, with the L-1 suffering high refusal rates on petitions and high governmental costs (the exception being where a large multinational employer has a “blanket” L-1 approval).
However, in 2022, this calculation might look different. Here’s why:
E-3 visa not included in State Department’s 2022 Interview Waiver Program
For 2022, in response to extreme backlogs at US Consulates worldwide due to high pent-up demand, pandemic closures, low resources, and many other issues plaguing the State Department, the State Department has temporarily waived the consular visa interview requirement for certain petition-based visas: H-1B, H-3, L-1, O-1, P-1, and Q visas, as well as H-2, F and M, and academic J visas. In order to qualify, the visa applicant must have previously been to the US under ESTA (visa waiver program) or previously held a substantive US visa at any time.
What the interview waiver means for applicants
Being eligible for the visa interview waiver, which traditionally was reserved only for renewals of visas, provides a solution around the significantly long wait times at US Consulates for visa interviews around the world. These are currently at the time of writing over 7 months at US Consulates in Australia and 2-3 months at Consulates in Europe, and much higher at smaller posts.
When an applicant’s interview is waived, this means they simply mail-in their passport and visa application documents to the Consulate rather than present them in-person. This means they can be mailed at any time rather than waiting for an interview slot months away. The visa application will be processed and the passport with visa label inside will be returned to the applicants via post.
This provides a significant convenience to applicants and employers.
Why the E-3 wasn’t included in the interview waiver program
The E-3 visa was regrettably not included in the State Department’s visa interview waiver announcement at the end of 2021 and remains excluded from the program.
The most likely explanation is that the E-3 is not a “petition based” visa, as the L-1 and H-1B are. An E-3 would typically not have a petition adjudicated by USCIS, rather, the applicant carries their documents to the interview and the eligibility for a work visa is assessed there. This is the case for all “E” visas, such as the E-1 and E-2 visas.
This point, however, ignores the fact that the E-3 can be petition-based. A petitioner (employer) always has the ability to lodge a petition with USCIS; it’s simply the case that this process was, for good reasons, usually given a miss as presenting to the Consulate directly has always been a far superior option (and cheaper, and faster).
Had the State Department included the E-3 visa in the interview waiver program for petition-based E-3, this would have allowed a workaround with the 7+ month long wait times in Australia, when paired with E-3 Premium Processing with USCIS.
Another possible explanation is that the State Department simply forgot about the E-3 visa and this was an oversight, given it is a smaller visa program limited only to Australian citizens.
Why the L-1 might be a better option over the E-3
In light of the interview waiver existing for L-1 (Intracompany Transfer) visas and not the E-3, the L-1 now provides a workaround the long wait times of 7+ months for E-3 visas.
The workaround is as follows:
- File an individual L-1 petition with USCIS with premium processing (add’l 2500 USD government fee)
- Receive either a Request for Evidence (RFE) or decision within 2 weeks
- Once approval is received, applicant completes DS-160 and mails required documents under interview waiver program to US Consulate Melbourne
- Within 1-4 weeks (on average, depending on capacity at the Consulate), the passport is returned with visa label inside
It is important to note that eligibility for an L-1 is quite different to an E-3, but in cases where the following apply, the L-1 should be investigated:
- Employee has worked for Australian (or other non-US) organisation for at least 12 months full-time over the past 36 months;
- Employee can be classified as a Manager, Executive (L-1A) or Specialized Knowlege Worker (L-1B) in their non-US and proposed US roles [seek advice on this];
- The Australian (or other non-US) organisation and the US entity have a qualifying relationship (e.g., parent-subsidiary, affiliate, branch, common ownership);
The L-1 is a more difficult visa to get (much higher evidentiary burden and more complex process with higher scrutiny and costs), but where the case is strong, it may be advisable to consider an L-1 visa ahead of an E-3 for the sole reason of getting around long 7+ month wait times at the US Consulates in Australia.
Globalised US Immigration Lawyers assist Australian businesses seeking L-1 Intracompany Transfer visas for staff, please contact us or schedule a consultation.
