E3 Visa referred for Administrative Processing

[Michael Shimmins]

Hi everyone,

Had my E3 Visa interview today. Fortunately it wasn't denied out of hand, but has been referred for "administrative processing" under 221(g).

Has anyone been in this situation before? There doesn't seem to be much info available on 221(g) out there.

(On the positive side the officer said I should find out by the end of the week, so doesn't sound like they're sending it State side to process).

Michael

[Joe Ward]

Cant be certain about the 221(g) however one potential is they might issue you a Request For Evidence (RFE).

If that was the case they might ask for something like proof of an employer / employee relationship.

RFEs can also include Bachelor's Equivalency but that's something they can determine in the in person interview.  

My firm uses Jackson Hertogs in San Fran for doing a comprehensive preparation job if you're ever looking for some help. 

One piece of advice that have is don't get denied. So you may think about getting some advice on this one. 

But I stress; I don't know what the 221(g) is and I'm clearly not a lawyer. 

- Joe Ward

+1 650 863 1450

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[Kate Kendall]

Hey Michael. 

Curious – did you do your interview in Melbourne or Sydney? (Heard different things about each...)

Cheers,

Kate

[Michael Shimmins]

Hi Kate,

My interview was in Melbourne.

Cheers,

Michael

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[Michael Shimmins]

Quick update - I got an email from the consulate today requesting additional details be provided so they can continue processing my application.

They've requested financial statements for the AU & US entities.

It is interesting how different the process seems to be applicant to applicant. Others I've spoken to haven't had to provide financial details of their companies. Would love to understand the secret process to work out what about my application tripped this additional requirement.

Fingers crossed that once they've got these details the visa will be approved - we're not hiding anything or doing anything dodgy, so all things being equal I think it should be.

Cheers,

Michael

On Tuesday, June 5, 2012 7:56:06 AM UTC+10, Michael Shimmins wrote:

Hi Kate,

My interview was in Melbourne.

Cheers,

Michael

On Tuesday, 5 June 2012 at 2:01 AM, Kate Kendall wrote:

Hey Michael. 

Curious – did you do your interview in Melbourne or Sydney? (Heard different things about each...)

Cheers,

Kate

On Sunday, 3 June 2012 21:33:16 UTC-7, Michael Shimmins wrote:

Hi everyone,

Had my E3 Visa interview today. Fortunately it wasn't denied out of hand, but has been referred for "administrative processing" under 221(g).

Has anyone been in this situation before? There doesn't seem to be much info available on 221(g) out there.

(On the positive side the officer said I should find out by the end of the week, so doesn't sound like they're sending it State side to process).

Michael

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[Michael Shimmins]

Hi everyone,

I heard back today (three weeks since the interview), the E3 was denied under 214(b) with the explanation:

"employer is a startup, speculative venture, with no track history, or evidence of ability to secure contracts, pay wages, fund positions".

Frustrating since our financial statements shows money in the bank to pay wages :/

Anyway, back to work.

Michael

[Brad Kellett]

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[Brad Kellett]

I've never heard of this happening before (and I've had three E3s for startups). Do you mind sharing some specifics on your startup? Off list if necessary. 

On Jun 25, 2012, at 10:20, Michael Shimmins <michael....@lexim.com.au> wrote:

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[blindman2k]

I got pretty much the same rejection this month from the Melbourne consulate. 

Mine was rejected because "the E3 visa is not for companies to relocate to the USA, try an investor visa."

Has anyone recovered from this position? I know I can't appeal but can I reapply in another way, such as actually getting a job over there?

Has anyone here got an L visa?

     A.

[Michael Shimmins]

The advice we received from an immigration attorney in the States was that for the purposes of gaining employment rights in the United States, to be employed by your startup, under this class of visa, there is no recovery from this.

Whilst you can re-apply for another E3, you can only do so if your situation has materially changed, otherwise they will inevitably deny you out of hand.  The first question they will ask is "what is different this time", if you can't satisfy that, interview over.

You can most certainly re-apply for an E3 if you've got a job offer from another employer, as that satisfies that something has materially changed, however be prepared to demonstrate that you fully understand you can only work for that employer, and you don't have intention to be paid by other US entity (i.e.: your startup) if they approve your Visa.  They will want to ensure that you're not using the other job offer to circumvent the original denial.

The L category of visa is a possibility, however you need to have an established, related foreign entity (ie: an Australia Pty/Ltd subsidiary, sister-company, parent company etc), and specifically for the L-1A, have been employed by the associated foreign company for at least 12 months, evidenced by pay stubs, tax returns etc.

Further if you apply for the L-1A to establish a new office, rather than to transfer yourself to an existing office in the United States, you will be eligible for an initial visa period fo 12 months, after which your eligibility will be re-assessed based on a number of factors, however most important ones are the growth of your new office in terms of staffing and revenue in the first 12 months.  If you haven't demonstrated significant (ambiguously defined by the way) growth, you're visa will likely not be renewed.

The E2 visa is appealing if you've raised capital in Australia (the amount is dependant on the type of business, I've heard recently that for an IT startup, in excess of $100k, ideally at least $150k is required) and can demonstrate that you will be controlling the investment: "the applicant, if an employee, is destined to an executive/supervisory position or possess skills essential to the firm's operations in the United States;"

Unlike the E3, the E2 and the L visa categories aren't really "DIY" visas and require a significantly longer time frame and budget to complete (although you could do them yourself - the L-1A is fairly straightforward after the USCIS petition is approved).

Cheers,

Michael

[Aron Steg]

Thanks Michael,

My business isn't a startup, its well established and stable in Australia but not yet launched in the USA. 

In the meantime I will continue hunting for an employer to hire me on an E3. I am flexible.

Do you know of any attorneys who could assist in getting an L1 visa?

Do you know what is different in the L1 process? I have been through the whole E3 process so have done the LCA, DS-160 and alike. 

     A.

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[Joe Ward]

Try Daniel Horne - Jackson Hertogs 

dho...@jackson-hertogs.com

He's excellent (based in SFO) 

- Joe Ward

CEO xTV 

+1 650 863 1450

[Michael Shimmins]

The main difference in the application is that you need your employer to petition the USCIS (Form I-129) first. There is no LCA requirement for the L-1A. Once the USCIS approves the petition for a non-immigrant worker, you can then file your DS-160 and schedule an interview.

The I-192 can take quite some time to process, but for an additional fee you can lodge an I-907 - request for expedited processing which guarantees they will review your petition within 14 days (if they don't they refund the additional fees).

The L-1A is a dual-intent visa so if you were to start the perm-residency process during your visa stay you won't jeopardise the status of your L-1A. The L-1A is closely aligned to the EB-1(c) Green Card, which is an employment based priority one green-card, not subject to annual limits, nor subject to a labor certification process for finding national workers to fill the role (ie: advertising it). Your employer must petition the USCIS using Form I-140 to apply for the EB-1 green card for a multi-national executive.

(standard I am not a lawyer stuff applies, just parroting what our attorney's advise, which was specific to our circumstances yada yada).

Michael

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[Aron Steg]

The big question is whether or not I and my company meet their requirements and the lawyers with experience are the ones that will know the answer to that. There is no point spending the time and money only to be rejected (again). 

I think I saw somewhere that the I-129 must be submitted locally in the USA. Is this correct?

      A. 

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Yours,
    A.

Aron Steg Managing Director
BCDE Investments, SMS Diagnostics, SMS Broker, Sniip, Zaq, Explainers
Tel: +61 4 3333 4444 | Fax: +61 3 8677 7613 |   

[Aron Steg]

Superb, thanks. 

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[Dean Collins]

I came over on a L2 (as spouse of my wife who was on a L1). The problem you’ll find with a L1 is you cant “work for someone else…..and work on your startup on the side).

 

Are you sure you understand how L1’s work?

 

Cheers,

Dean

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[blindman2k]

Yeh, I spoke to an attorney the other day and came up with the same conclusion. The L1 and E2 require long term commitments and finances to your business. If that fits into your plan they are really good options. In my case, they don't. It's back to focusing on getting a job and an E3 for me.

     A.

[Manish Bhatt]

Hi Michael.

My E3 also got rejected today under section 214(b).

I am Australian citizen as of Aug 2014. Migrated to Australia from India in 2010 as PR.  My LCA from a reputed consulting company was approved in Dec 2014.  During interview the visa officer asked me to submit updated employment letter carrying details of client name and client location (under 221(g)). He did not went into details about my education as well my australian ties (as E3 is non-immigrant visa).  I have sent updated employment letter along with details of client name and client name few days ago and today recieved a rejection mail saying

"This is to inform you that you have been found ineligible for a nonimmigrant visa under Section 214(b) of the U.S. Immigration and Nationality Act. A denial under Section 214(b) means that you were not able to demonstrate that your intended activities in the United States would be consistent with the classification of the nonimmigrant visa for which you applied. 

While nonimmigrant visa classifications each have their own unique requirements, one requirement shared by many of the nonimmigrant visa categories is for the applicant to demonstrate that he/she has a residence in a foreign country which he/she has no intention of abandoning. Applicants usually meet this requirement by demonstrating that they have strong ties overseas that indicate that they will return to a foreign country after a temporary visit to the United States. Such ties include professional, work, school, family, or social links to a foreign country. You have not demonstrated that you have the ties that will compel you to return to your home country after your travel to the United States. 

Today’s decision cannot be appealed. However, you may reapply at any time. If you decide to reapply, you must submit a new application form and photo, pay the visa application fee again, and make a new appointment to be interviewed by a consular officer. If you choose to reapply, you should be prepared to provide information that was not presented in your original application, or to demonstrate that your circumstances have changed since that application. "

I have strong ties with australia

1. Property and Bank accounts

2. Elder brother and his family is Australian citizen and been in Australia for last 10 years

3. My E3 application did not included my spouse and kids so more ties till they are in Australia

My questions

1. Are above proofs sufficient ? What else can be provided?

2. Is is better to re-apply E3 immediately or should I wait for some time?

3. Is it better to re-apply using same company or apply through different company (meaning new LCA)

Regards

Manish

[Krishna Pulipaty]

Hi Manish,

I'm in a similar situation to yours. I came to Australia in 2009 and became a citizen in Feb 2014 i.e. 1.5 years ago. But worse than you, I don't have a property mortgage here. I can show only bank account history, some savings, and a car.

What do you think of my chances for visa approval?

In your case, who were the employer and the client? Do you think a bigger employer and a bigger client would have helped you?

Krishna