← Back to context

Comment by aussieInSF

4 days ago

Thank you for doing this Peter!

I am Australian, working in tech using an E-3 visa in the Bay Area.

My wife is considering moving forward with an EB-2 NIW application, she is currently in F1 OPT. She doesn't have a very strong profile currently, but is willing to work on it.

I am concerned that this might complicate me being able to renew the E-3 in the future. My understanding is that an approved or even denied I-140 from a spouse potentially signals immigrant intent for both, and it is at the discretion of the CBP agent to make this assessment.

More generally my understanding is that even if her I-140 was approved, and we stayed in the US until the I-485 was filed, that would permanently make me not eligible for any future E-3.

Is this accurate?

I previously was thinking of following the E-3 -> EB-3 -> GC route myself, but I don't see how I can do this if I'm sacrificing the E-3 if anything goes wrong.

4 comments

aussieInSF

Reply
proberts  4 days ago

First, the NIW standard has changed significantly recently so it might not be a good option for your wife to pursue if her profile isn't very strong since the standard as now applied looks more and more like the EB1A standard and focuses more on the applicant's individual qualifications and achievements rather than end-purpose of the applicant's work. While one spouse's immigration actions can impact the other's immigration status and options, the real risk isn't until the I-485 stage. We've had many E-3 visa holders renew their E-3 visas without issue when their spouses have pending or approved I-140 petitions and even when the E-3 visa applicants have pending or approved I-140 petitions. Now, to be clear, the world has changed so what held true before might not hold true now but historically - and during the past 6 months - we have not had any issues with Australians traveling or renewing their E-3 visa under such circumstances.

  • aussieInSF  4 days ago

    Appreciate the response.

    Just in case you circle back, assuming I go the EB-3 route via my employer, am I correct in thinking that an I-485 application or even going the consular processing route makes the E-3 unobtainable in the future if either fail?