In line with the U.S. Department of State’s increased periodic review and update of visa “reciprocity” pursuant to a January 2017 Executive Order, Mexican nationals will now benefit from increased visa validity periods in the E-1 Treaty Trader and E-2 Treaty Investor categories. The current reciprocity schedule, found on the Department of State website, now reflects that E-1 and E-2 visas for Mexican nationals can be issued for up to 48 months, up from 12 months, upon payment of increased processing fees of $296, up from $46. The increase in E-1 and E-2 visa validity for Mexican nationals suggests improved cooperation in reciprocal Mexican investor visa policies towards Americans consistent with the national interests of U.S. travelers and businesses.

The increase in E-1 and E-2 visa validity carries substantial practical advantages for Mexican nationals. Most prominently, extended visa validity means that business owners and key employees will benefit from the certainty of being equipped with visas authorizing return to the United States for a prolonged uninterrupted period. In the present circumstances surrounding COVID-19 and its impact on international travel and the temporary closure of U.S. consular posts worldwide, being equipped with a visa for a prolonged period carries enhanced value. Mexican National E-1 and E-2 business owners and key employees may now confidently plan cross-border business trips over an extended period without possibly having to plan for visa renewal along with uncertainty over the impact of delays and obstacles in visa renewals. Moreover, Mexican National E-1 and E-2 business owners and key employees are afforded the opportunity to grow and develop a newer business venture in the United States over a period of at least 48 months, rather than at least 12 months prior to consular scrutiny. This may be a benefit to newer business operations that for one reason or another do not achieve their business targets in a given year, however, continue to develop and direct a business enterprise on track to reach and surpass its initial business objectives and financial forecast over its first five years of operation. This benefit is consistent with the visa validity of most E-1 and E-2 countries whose citizens are issued visas for up to 60 months, allowing newer businesses more time to achieve business targets prior to being subjected to scrutiny by consular officers, which may serve as a disincentive to U.S. investment. Importantly, the validity of visa stamps is not determinative of the admission period in the U.S., with E-1 and E-2 visa holders admitted for a period of two (2) years upon each entry within visa validity; and with H-1B and L-1 visa holders being admitted for the period of validity of their USCIS approval notice (or Form I-129S in the case of blanket L visa holders).

In addition to benefitting from increased visa validity periods in the E-1 Treaty Trader and E-2 Treaty Investor categories, Mexican nationals will also benefit from increased visa validity periods in the L-1 category for Intracompany Executives, Managers or Specialized Knowledge personnel and the H-1B category for Specialty Occupation Professionals, while the TN NAFTA Professional visa validity period remains the same at 12 months. The current reciprocity schedule now reflects that L-1 visas for Mexican nationals can be issued for up to 48 months, up from 12 months, upon payment of increased processing fees of $311, up from $57, and H-1B visas for Mexican nationals can be issued for up to 36 months, up from 12 months, upon payment of increased processing fees of $252, up from $57. Correspondingly, personnel in the L-1 and H-1B categories will also benefit from the certainty of being equipped with visas authorizing return to the United States for a prolonged uninterrupted period.

*Special thanks to Chris Costa for his valuable assistance in preparing this GT blog post.

The Department of State (DOS) has implemented revised visa stamp reciprocity for L-1, L-2 and E-1/ E-2 visa holders. Now, the maximum validity date of an L-1 or L-2 visa of a French national will be seventeen (17) months. The previous validity period was five (5) years. The new validity period for E-1 and  E-2 visa holders is twenty five (25) months. The previous validity period was five (5) years.

This change will impact the ability of French nationals to travel in and out of the United States during the duration of their L-1 and L-2 validity periods, which will generally still be issued for a maximum of three (3) years, assuming an individual’s passport does not expire within three (3) years of L-1 or L-2 approval. Note, this change does not require L-1 and L-2 visa holders to depart the United States within seventeen (17) months. If an L-1 or L-2 visa holder does not have any international travel plans after the expiration of the L-1 and L-2 visa stamps, that individual may continue to remain lawfully in the United States until their I-94 expiration date, which is generally the same day as the validity period of their approval notice from USCIS or the I-129S form annotated by the U.S. Embassy or Consulate. Travel after expiration of the relevant visa stamp will require a visit to a U.S. embassy or consulate to obtain a new visa stamp before returning to the United States.

For French nationals who are E-1 and E-2 visa holders, their period of authorized stay in the United States, as indicated on their I-94, is currently two (2) years after each entry, and this will continue even after the reciprocity change. They will be permitted to stay for two full years even if they enter the United States one day before their E-1 or E-2 visa expires. Once they leave the U.S. after expiration of their E-1 or E-2 visa, however, they will need to apply for a new visa.

U.S. immigration law requires DOS to set country-specific visa durations based on the principle of reciprocity, or, in other words, based on that country’s treatment of U.S. visa applicants in similar categories, among other considerations. While there have been press reports and announcements previously regarding the decreased validity periods for L-1, L-2 and E-1/E-2 visa holders, DOS has only recently updated its website to reflect these changes.

GT will continue to monitor possible changes to the reciprocity schedules of other nations as well.

For more on reciprocity, click here.

In June we wrote about the April 12, 2016, European Commission Communication to the EU Council and Parliament concerning visa-free travel reciprocity with the United States and Canada.  In its communication, the Commission requested a response and advice from the EU Parliament and Council by July 12 on how to move forward in light of outstanding visa reciprocity issues with the United States and Canada.  In our  previous post, we observed that near term action by the EU with respect to reciprocity and visa requirements was unlikely.

shutterstock_273008201According to a follow-up Communication dated July 13, 2016, and an accompanying press release issued from the European Commission, the EU Parliament and Council did not take a position as of July 12 concerning the imposition of visa requirements on the United States or Canada.  In the Commission’s release, the EU Home Affairs Commissioner Dimitris Avramopoulos said that diplomatic efforts to resolve the issue have become more vigorous over the last three months with U.S. and Canadian officials.  The Communication states that “contacts with the United States have intensified both at [a] technical and political level.”

In its July 13 Communication, the Commission further acknowledges, however, that “since April, there has been no progress of relevance to EU citizens resulting from ongoing United States legislative initiatives, notably the ‘Jobs Originating through Launching Travel Act of 2015’ and the ‘Equal protection in Travel Act of 2016.”   The Communication continues: “[d]espite stepping up political and technical contacts, there have not been comparable indications of progress with the United States as those seen with Canada.”  Commissioner Avramopoulos advised that the Commission “will continue to work towards full visa reciprocity and we will coordinate our activities with the Member States concerned, the European Parliament and the Council to accelerate the delivery of results.”

In light of the current electoral climate in the United States, recent global events that continue to heighten security concerns among U.S. governmental leaders, and the communications between EU and U.S. officials reported in the Communication, it is unlikely that the U.S. will accede to the EU’s requests in the near term.  Conversely, despite the Communication’s direct language, the most recent Communication—which includes reference to the significant impact the imposition of visa requirements on U.S travelers would have on EU Member States—suggests that the EU will continue to pursue a diplomatic solution to the reciprocity issues it faces with the United States.

GT will continue to monitor developments on this issue.  To receive updates please subscribe to this blog.

The Department of State (DOS) announced changes to the Country Reciprocity Tables for immigrant visa cases. Specifically, the DOS update provided the following country-specific updates:

Date Country Change
11/3/14 Afghanistan Updated birth certificate information
10/23/14 Ukraine Updated police certificate information, regarding name of document.
10/23/14 Jordan Added information on obtaining a certificate of non-conviction.

Continue Reading Some Reciprocity Changes Announced by DOS

The Department of State (DOS) announced changes to the Country Reciprocity Tables.  The Country Reciprocity Tables list additional visa fees that must be paid by nationals of certain countries when applying for certain types nonimmigrant visa stamps at US Consulates abroad.  The Tables also list whether applicants of a certain country are subject to a limited number of admissions and/or the validity period of their visa has a limited length of time.  Visa applicants should review these tables closely prior to making a visa application at a Consulate abroad.  The Tables also list country-specific documents that applicants must obtain for immigrant visa cases.  In this regard, the most recent DOS update provides the following country-specific updates:

Area/Country of Change Change
Japan Updated police records information
Macau S.A.R. Updated the cost of obtaining a police certificate
Russia Updated internal residence documents section
Sweden Updated travel document section

The U.S. Department of State (DOS) announced a pilot program to resume domestic visa stamp renewal for qualified H-1B visa applicants who meet certain requirements. The notice of the pilot program was published in the Federal Register Dec. 21, 2023, after clearing review by the White House Office of Information and Regulatory Affairs. The program will open Jan. 29, 2024, and close April 1, 2024, or when all application slots are filled, whichever occurs first. The pilot program will allow certain qualified individuals in H-1B status to receive an H-1B visa stamp in their valid passport in lieu of applying for the visa stamp at a U.S. consulate or embassy abroad.

The program will be open to an initial 20,000 H-1B visa applicants. The program will be limited to eligible foreign nationals who received an H-1B visa stamp from a U.S. consulate in India between Feb. 1, 2021, and Sept. 30, 2021, and foreign nationals who received an H-1B visa stamp from a U.S. consulate in Canada between Jan. 1, 2020, and April 1, 2023. Additionally, applicants must demonstrate that they meet the following criteria:

  • They are the beneficiary of an approved and unexpired H-1B petition;
  • They maintain H-1B status in the United States;
  • Their period of authorized admission in H-1B status has not expired;
  • Their most recent entry into the United States was in H-1B status;
  • They are not subject to a reciprocity fee, based on country of citizenship;
  • They are eligible for a waiver of the in-person visa interview requirement;
  • They do not require a waiver of visa ineligibility;
  • Their prior visa does not include a “clearance received” annotation;
  • They submitted 10 fingerprints to the DOS during a previous visa application; and
  • They intend to reenter the United States in H-1B status after a temporary period abroad.

The pilot program will make 4,000 application slots available weekly on Jan. 29, Feb. 5, Feb. 12, Feb. 19, and Feb. 26, 2024. Eligible applicants may apply online at the Department of State Domestic Renewal webpage by completing a questionnaire to confirm eligibility, and then completing the Form DS-160 electronic nonimmigrant visa application and paying the $205 fee. Once the fee is paid, applicants will receive instructions on the submission of required documents to the DOS. Applications are expected to be processed in six to eight weeks from the date the documents are received.

Other visa categories such as H-4 (dependents of H-1B principal applicants) are not eligible for the domestic renewal program. The DOS noted that processes to adjudicate additional visa categories will continue to develop concurrently with the pilot, but for the time being, only H-1B principal applicants who meet the above criteria are eligible to apply for the domestic visa renewal.

On Oct. 17, 2023, the U.S. Department of State initiated the process for resuming its stateside visa renewal program. The State Department sent a Federal Register notice, Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens, for review to the U.S. Office of Information and Regulatory Affairs. The details of the pilot program will be disclosed only when the Federal Register is published. However, early reports indicate that the program likely will:

  • Start in early 2024;
  • Be available only for H-1B principals;
  • Be available only for nationals of countries that are not subject to reciprocity fees;
  • Have eligibility requirements similar to the interview waiver program;
  • Be limited to 20,000 applicants; and
  • Be voluntary.

As reported in a February 2023 GT blog post, the State Department plans to limit the program at first to test out its operability and expand it after potential issues have been addressed.

On May 1, 2023, the U.S. Department of State (DOS) updated four provisions of the Foreign Affairs Manual (FAM) relating to E visas. The updates relate to E-2 substantiality; E company registration; E-3 intention to depart; and the treatment of spouses and children of E visa applicants. These changes are described more fully below:

  1. Substantiality – The substantiality change at 9 FAM 402.9-6(D) instructs consular officers that once the sums invested are determined to be substantial, the E visa applicant does not need to be evaluated on that criteria going forward.
  2. E Company Registration – The modified language relating to E company registrations (9 FAM 402.9-7(D)) clarifies best practices for posts that administer an E company registration program. The guidance instructs officers on criteria to apply in assessing whether an E company registration is in good standing, including consideration of the number of E employees and review of E company eligibility every five years. DOS instructs consular officers that the five-year review may be difficult at posts handling large numbers of E visa petitions, and the absence of such a review should not be the sole grounds for terminating E company status.
  3. Intent to Depart – In 9 FAM 402.9-8(G), which relates to E-3 visas for Australian citizens, DOS added a paragraph stating:

    “An E visa applicant is presumed to be an immigrant until the applicant establishes to your satisfaction that they are entitled to E nonimmigrant status. The standards for applying INA 214(b) described in 9 FAM 302.1-2(B) apply to E visa applicants.”

    This added information to the “intent to depart” provision for this visa category appears to indicate that all E-3 visa applicants have immigrant intent unless they prove otherwise.
  4. Spouses and Children of E Visa Applicants – The modified language at 9 FAM 402.9-9 distinguishes between the treatment of derivatives from E Treaty countries and those from non-Treaty countries, instructing the officer to apply the reciprocity standards applicable to the nationality of the specific visa applicant (i.e., the derivative) rather than the principal, except in instances in which the derivative’s nationality does not have an E Treaty.

    Previously, the FAM said, “The spouse and children of an E visa applicant receive the same visa validity and number of entries and are required to pay the same reciprocity fee, if applicable, as the principal applicant.” The FAM notes that the spouse and/or children who are nationals of countries with an E treaty agreement are issued visas valid for the maximum validity authorized by the reciprocity schedule of their nationality OR for the length of the principal’s visa, whichever is shorter.

FOR THE WEEK OF NOV. 7, 2022

Election Eve and Congress

  • Immigration continues to be a key issue in the 2022 mid-term elections. The results of the election could determine the fate of immigration reform in the next Congress including, DACA, TPS, Afghan Adjustment, Farmworker legislation and other business-related immigration. We will provide an analysis following the election.

Accreditation Loss Affects OPT, H-1Bs and I-140s

  • The U.S. Department of Education no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.
  • USCIS will deny STEM OPT applications for those who obtained their degree from an ACICS school after August 19, 2022
  • A degree issued by an ACICS school after August 19, 2022 will not qualify for the H-1B advanced degree exception and it will not qualify for an EB-2 I-140 petition.

Venezuelan Parole Program – Update

  • The Administration announce a humanitarian parole program for Venezuelans wanting to enter the U.S. on Oct. 18, 2022. The goal was to provide a lawful channel for those applicants and deter illegal land border crossings.
  • According to DHS, the initial data shows that there are now fewer illegal border crossings with new lawful entry program. According to DHS the attempted irregular entries of Venezuelans at the border is down to approximately 300 per day – down from 1,100 per day. As of Oct. 31, 2022, about 7,000 Venezuelans have received approval to travel to the United States. 

State estimates 20,000 fewer employment-based immigrant visas for FY2023

  • FY2023 employment-based annual limit projected to be 197,000
  • FY2022 employment-based annual limit was 281,507; of those, more than 220,000 were issued to applicants in the US

Interview waiver wait times added to State Dept site

  • State updated its Visa Appointment Wait Times page to include estimated wait times for interview waiver appointments (sometimes called Drop Box appointments)
  • Visitors (B-1/B-2); students (F,M,J); and workers (H,L,O,P,Q) may be eligible for interview waiver appointments
  • The Visa Appointment Wait Times site also includes a link to an ‘at-a-glance’ Global Visa Wait Times site, which lists the wait times for visitor, student and work visa appointments for all embassies and consulates worldwide.

FOR THE WEEK OF NOV. 15, 2022

Immigrant and Employee Rights review employer ATS

  • DOJ’s IER section confirmed it is evaluating electronic software systems based on complaints of discriminatory hiring practices
  • IER has identified several software platforms with dropdown menus that resulted in employers inadvertently posting job advertisements with unlawful citizenship status restrictions.
  • IER will hold the employer liable for these violations and not necessarily the software company.
  • Employers should review their applicant tracking systems; inadvertent discrimination is still a potential violation

SAVE delays at 40-day average

  • SAVE system is interagency platform that confirms an applicant’s immigration status Delays in system updates affect driver’s license and social security number applications.
  • USCIS is working to reduce SAVE wait times to 10 days by March 2023

TPS extended for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

  • DHS is automatically extending the validity of TPS-related work authorization for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024, from the current expiration date of December 31, 2022.

 Tech layoffs trigger USCIS, DOL scrutiny

  • USCIS and DOL are taking a closer look at H-1B and PERM filings in the wake of layoffs by tech industry companies.

FOR THE WEEK OF NOV. 22, 2022

Immigration Legislative Efforts Face Strong Headwinds

  • The ability to get immigration policy reforms on the Omnibus this December is becoming more unlikely. There are intense efforts by groups across the immigration policy spectrum to do something for DACA, TPS, and Afghan beneficiaries. There are also increased efforts to strike a deal on the Farmworker Modernization Act.
  • However, it’s unclear whether the Omnibus will actually even happen this calendar year; it may be pushed into the new Congress. The other big question is whether Republicans will let immigration reform move forward without significant border and asylum reforms.
  • Key leaders have signaled that due to timing and scope, it is a real uphill battle to get any kind of immigration reform on the Omnibus.

Certain Afghan and Ukrainian Parolees are Employment Authorized Incident to Admission Status

  • USCIS announced that Ukrainian and Afghan parolees with UHP or OAR listed as their class of admission on their unexpired I-94 may present it as a List A document as proof of identity and work authorization for I-9 purposes.
  • Additionally, Ukrainian nationals with I-94s issued between Feb. 24, 2022, and Sept. 30, 2023, with DT as their class of admission may present it as a List A receipt that temporarily shows identity and work authorization for Form I-9 purposes.

Mexican nationals can pay more for a longer TN visa stamp

FOR THE WEEK OF NOV. 29, 2022

Immigration Legislative Efforts Continue Despite Pushback

  • It appears that the Dec. 16 deadline for the Omnibus spending bill will be extended through Dec. 22. This gives advocates additional time to push for immigration relief, such as DACA, TPS and Afghan Adjustment relief. 
  • Pushback on these efforts is strong, and key Republicans are signaling that the Omnibus is not the vehicle for any immigration reform. These Republicans want border and asylum reform first. There is still a possibility the Omnibus gets pushed into the new Congress.

December Visa Bulletin Brings Retrogression for Worldwide EB-2

  • The U.S. Department of State (DOS) has published the December 2022 bulletin, which reflects an increased demand across multiple categories and implements a world-wide cut-off for the EB-2 category.
  • Due to increased demand and number use in the EB-1 category, combined with decreased visa number availability for FY-2023 in comparison to FY-2022, we may see the establishment of final action date and application date cut-offs for EB-1 China and India in the coming months.
  • Within the EB-2 category, except for China and India, all countries are subject to a final action date of Nov. 1, 2022 and an application filing date of Dec. 1, 2022. EB-2 India faces a retrogression in its final action date with a cut-off of Oct. 8, 2011 and the final action date for EB-2 China remains the same as last month with a cut-off of June 8, 2019.
  • EB-3 final action dates and application filing dates remain current on both final action and application filing date charts for all countries except China and India, which face cut-off dates in 2018 and 2012, respectively.

Certain Afghan and Ukrainian Parolees are Employment Authorized Incident to Admission Status and EAD Applications are Fee Exempt

  • As of Nov. 21, 2022, the guidance applies to the following individuals, if their parole has not been terminated:
    • Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR”;
    • Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP”; and
    • Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between 2/24/22 and 9/30/23, and indicates Ukraine as the country of citizenship on the document.
  • Advocates and policy makers are trying to extend this guidance of ‘employment authorization incident to status’ to other countries and types of applications, such as TPS and Venezuelan Parole.

DOJ’s Immigrant and Employee Rights (IER) Division Focuses on Employer’s Screening and I-9 Processes

  • Lady M, a New-York based bakery and retail confectionary, reaches a settlement with IER. For a two-year period, Lady M required green cards from new hires who indicated they were lawful permanent residents in Section 1 of their Form I-9. Lady M agreed to pay a civil penalty of less than $2,000. The company additionally agreed to review and revise its employment policies and submit them to IER approval and ensure all personnel related to hiring review and have access to the latest I-9 and E-Verify Handbook for Employers (M-274). Lady M also agreed to make sure to provide new hires with a list of acceptable I-9 documents and will ensure all of its hiring personnel undergo training.
  • IER reaches a settlement with Aero Precision LLC, a firearm manufacturer located in Washington state, which maintained a hiring practice during four-month period that screened out asylees and refugees. Pursuant to the settlement, IER did not seek a civil penalty. Rather, Aero Precision agreed to review and revise its employment policies and submit them to IER approval, and ensure all personnel related to hiring have access to .
  • Giant Food, a Pennsylvania-based grocery store chain with stores in various states, reaches a settlement with IER. For an 18 month period, Giant Food’s location in Royersford, PA required green cards from those new hires who indicated they were lawful permanent residents in Section 1 of their Form I-9, and its software onboarding program erroneously rejected I-9 documents. Giant Food agreed to pay back pay and penalties totaling $29,000. Giant Food agreed to review and revise its employment policies and submit them to IER approval, ensure all personnel related to hiring receive I-9 training, and update its onboarding software.
  • IER reaches a settlement with Professional Maintenance Management (PMM), a Maryland-based janitorial services company. For a two-year period, PMM required certain I-9 documents from its hires who indicated they were lawful permanent residents, asylees or refugees in Section 1 of their Form I-9. While PMM denied IER’s charges, it agreed to pay a penalty of $300,000 in three installments. PMM agreed to review and revise its employment policies and submit them to IER approval, and ensure all personnel related to hiring receive I-9 training and register for email updates regarding TPS, DACA, E-Verify, and I-9s.

A complex combination of the pandemic and USCIS’s ever-increasing processing times has chained E-3 visa holders in the United States to their current employers. The E-3 visa is a special category for Australian nationals seeking to work in the United States in a specialty occupation. Generally speaking, specialty occupations are those which require at least a bachelor’s degree or higher for entry.

The E-3 visa was an outgrowth of the Australia-U.S. Free Trade Agreement (AUSFTA), although it is not enshrined directly within the AUSFTA. Rather, the E-3 visa was created via legislation which amended the Immigration and Nationality Act as reciprocity for the ability of Americans to obtain work visas in Australia. The E-3 visa is attractive for Australian nationals because it permits spouses to obtain work authorization (unlike its specialty occupation counterpart the H-1B visa), and it is renewable indefinitely in two-year increments.

Virtually all E-3 visa extension-of-stay and change-of-employer applications also happen at a consular location, usually in Australia, rather than through USCIS. This is because the consular E-3 process is faster and more efficient than applying via USCIS. Normally (when not in the midst of a pandemic), an applicant can take a short trip to Australia and obtain a new visa, whereas E-3 applications via USCIS cannot be premium processed, can take months to adjudicate, and do not grant the travel permission to reenter the United States. Furthermore, E-3 change-of-employer applications filed with USCIS must be approved before the applicant can start work for the new employer. This trend is borne out in the statistics,—in fiscal year 2019 before the pandemic, 5,807 E-3 visas were issued by the Department of State. In comparison, USCIS has not reported the number of USCIS E-3 applications adjudicated in recent years, lending credence to the notion that such applications are extremely rare.

As has been widely reported, the pandemic has caused widespread and long-lasting disruptions to consular services worldwide, with few, if any, consular locations processing routine visas. Routine consular services in Australia were first reduced and then suspended at the beginning of the pandemic and have yet to resume at scale. Without the option for E-3 visa applicants to travel to Australia to attend an E-3 visa interview at a consulate, E-3 visa holders must file an extension-of-stay or change-of-employer application with USCIS. Because E-3 visa holders are forced to file with USCIS, the pandemic’s impact has been exacerbated for such visa holders due to longstanding issues with USCIS processing times.

Stretching back to early 2018, processing times at USCIS spiked exponentially for all application types. The American Immigration Lawyers Associated reported in 2019 that average case processing time surged 46% from 2017 to 2019 and 91% since 2014. While much has been written on USCIS’s issues in this regard, the combination of processing time issues and pandemic consular closures has put E-3 visa holders in a virtually impossible situation with respect to employment.

Effectively, an E-3 visa holder cannot currently change his or her employer without an extended delay. USCIS’s posted processing times for E-3 applications are currently approximately five to seven months, and such applications cannot be premium processed. While recent legislation authorized the Department of Homeland Security to grant premium processing to E-3 applicants, it has not been implemented yet. Thus, employers seeking to hire an E-3 visa holder in the United States would have to wait five to seven months for an application to be approved before an employee starts work, something which is extremely unlikely. Furthermore, if an E-3 visa holder tries to change their employer by applying via a consular location in Australia, they will have to run the gamut of quarantine requirements, travel restrictions, potential lockdowns, flight disruptions, and consular appointment availability, which also can delay the visa process by many months.

The net effect is that E-3 visa holders face a de facto bar on changing employers during the pandemic. Permitting E-3 visa applications to be premium processed or establishing portability provisions similar to those granted to H-1B visa holders are possible solutions, but neither will likely be effective prior to the end of the pandemic. The silver lining is that the pandemic has exposed this as an area to be reformed (one area of many exposed by the pandemic) to ensure the proper functioning of our immigration system and employee mobility during a future pandemic or period of travel restriction.