Dear Sophie: When can I apply for my US work permit?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie,

My husband just accepted a job in Silicon Valley. His new employer will be sponsoring him for an E-3 visa.

I would like to continue working after we move to the United States. I understand I can get a work permit with the E-3 visa for spouses.

How soon can I apply for my U.S. work permit?

— Adaptive Aussie

Dear Adaptive,

Thanks for your question and congrats on the new employment opportunities for both you and your husband! Listen to my podcast episode on work permits, or Employment Authorization Documents (EADs) as they are officially known, to find out who qualifies for one, when you can apply for one, what you can do with one and how long it takes to get one.

You can apply for a work permit once you arrive in the United States in E-3 status (a professional work visa for Australians in the U.S.). It’s not possible to apply for a work permit at the consulate in Sydney when you apply for your E-3 visas. To do that, you will need to submit Form I-765 (Application for Employment Authorization) and supporting documents to U.S. Citizenship and Immigration Services (USCIS). If USCIS approves your application, you will not be able to start working until you receive the physical, plastic EAD card, which proves to prospective employers that you are authorized to work in the United States.

How long will it take?

USCIS is currently backlogged and is taking about 11 months to process EAD applications. Since any mistakes or omissions in an EAD application can create further delays, I recommend hiring an immigration attorney to submit the application on your behalf. An immigration attorney can also discuss other options that could enable you to start working sooner.

Many work permits are granted in two-year increments and can be extended as long as you maintain your underlying status. But because the E-3 visa is also granted in two-year increments, and given the backlog at USCIS, your work permit might only be valid for about a year when you receive it. You can submit an EAD renewal application up to 180 days before your existing work permit expires. (Your immigration attorney will be able to help you monitor all of these dates.)

For some people with work permits, such as individuals seeking STEM OPT, the receipt notice for your I-765 renewal can serve as evidence to U.S. employers of your continued authorization to work for up to 180 days. However, others, like E-3 spouses, cannot legally work while they are awaiting their renewal, so you may have to consider taking a leave of absence until you receive your new EAD card. This would definitely be something to discuss with your attorney, and you might want to consider getting your own E-3 instead if you qualify.

Other options

As you may already know, work permits are typically not tied to a specific employer (unless, for example, you’re a student on an F-1 visa who is getting a work permit through Optional Practical Training, also known as OPT, or a STEM OPT two-year extension). A work permit will enable you to work as a contractor, as an employee of a company, or often to create and work for your own company (except perhaps for OPT and STEM OPT; discuss with your attorney).

If you decide to take a position with a company — depending on your profession, work experience and education level — you may qualify for an E-3 visa on your own, which will enable you to work without having to get a work permit. The processing time for getting an E-3 visa on your own is much faster than getting a work permit.

If you and your husband want to get green cards to live and work permanently in the United States, there are several options you could consider. If you were both born in Australia or any other country on the eligibility list for the Diversity Immigrant Visa program, you could register for the diversity green card lottery in October. Check out my podcast and a previous Dear Sophie column on the diversity green card for more info.

Given the shortage of specialized, high-tech talent in the U.S., your husband may be able to request that his employer sponsor him for an employment-based green card or cover the legal and application fees for the diversity green card if you’re selected.

With a green card, you will be eligible to obtain a separate work permit if you proceed through the I-485 Adjustment of Status phase of the process. Also, you would be allowed to work once your green card is approved, which may take a couple of years depending on the type of green card you ultimately pursue.

Again, an immigration attorney may be able to suggest additional options based on your situation and goals.

Enjoy this new chapter in your life and career, and safe travels!

Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!