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Client Alert: Changes to the FAM for E Visa Applicants

In May 2023, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) relating to E visas. In this client alert, we highlight 2 of the most concerning changes.

1. E-3 visas & intent to depart the U.S.

The DOS modified 9 FAM 402.9-8(G), which discusses the intent to depart requirement for E-3 visa applicants. The new language states:

“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.”

With the addition of this language, consular officers may apply INA §214(b) more often to deny E-3 visa applications because they presume the applicant is an “intending immigrant.”

Our recommendation: E-3 visa applicants should provide sufficient information/documentation to demonstrate that they have strong ties to their home country that will require them to leave the U.S. at the end of their temporary stay.

2. Spouses & children of E visa applicants

The DOS modified 9 FAM 402.9-9, which now treats spouses and children (dependents) of E visa applicants from E Treaty and non-Treaty countries differently.

Consular officers are now instructed to apply the visa reciprocity applicable to the dependent’s nationality and not that of the principal applicant’s nationality, when issuing E visas. 

This is a drastic change from the DOS’ visa policy, which previously stated:

"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."

So, what would this look like?

Where the E-2 principal and their spouse are Italian, both applicants would receive visas valid for 60 months.

Where an E-2 principal is Italian and their spouse is Bangladeshi (Bangladesh has an E-2 Treaty), the Italian principal would receive visa for 60 months while the Bangladeshi spouse would receive a visa for 3 months.

Where an E-2 principal is Italian and their spouse is Vietnamese (Vietnam does not have an E-2 Treaty), both the Italian principal and the Vietnamese spouse would receive visas valid for 60 months.

Our recommendation: Applicants for nonimmigrant visas with dependents who have different nationalities should check the DOS’ reciprocity website to determine the length of the visas that will be issued to their dependents. It is important to know, in advance, if their dependents’ visas will be issued for a shorter validity period so that travel plans can be made.

For example, if a dependent’s visa will only be valid for 3 months, it is important to schedule additional time into international travel so that the dependent can apply for a new visa when their current one expires.

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E-3, Australian Specialty Occupation Worker


Pursuant to the 2005 U.S.-Australia Free Trade Agreement, the E-3 visa classification allows Australian citizens to enter and work in the U.S. in a specialty occupation for two (2) years. To qualify for an E-3 visa, the applicant must:

  • Be an Australian citizen;

  • Have a legitimate offer of employment in the U.S. in a specialty occupation; and

  • Possess the required academic background or other qualifying credentials for the specialty occupation.


The Immigration and Nationality Act (“INA”) defines a “specialty occupation” as a job that requires the “theoretical and practical application of a body of highly specialized knowledge to perform the occupation”; and the “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” INA §214(i)(1).


Generally, a specialty occupation is one that cannot be performed without a bachelor's or higher degree (or its equivalent) in a specific field of study. 


Examples of specialty occupations include but are limited to: architects; engineers; professors; teachers; lawyers/attorneys; database administrators and other information technology-related occupations; accountants; economists; doctors and other medical and health related occupations; writers; librarians; marketing and advertising positions; and social workers, to name few.


An added benefit of the E-3 visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in E-3D status may work without applying for work authorization in the United States.

L-1A & L-1B Intracompany Transferees


The L-1 visa classifications provide U.S. employers with the opportunity to transfer key personnel to the U.S. from their foreign parent, subsidiary, branch or affiliate companies. Generally, the L-1A visa is valid for a maximum period of seven (7) years, while the L-1B visa is valid for a maximum period of five (5) years.


To qualify for an L-1 visa, the applicant must:

  • Have worked outside the U.S. on a full-time basis for one continuous year out of the last three years for a parent, subsidiary, or affiliate of the U.S. employer, where the foreign employer and U.S. employer are related through at least 50% common ownership;

  • Have worked in either an executive, managerial or specialized knowledge capacity for the foreign employer; and

  • Be coming to the U.S. to work in an executive, managerial or specialized knowledge capacity for the U.S. employer.


The L-1A visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in either an executive or a managerial capacity. According to USCIS:

  • An Executive directs the management of an organization, division, or major function, including establishing goals and policies and exercising discretionary decision-making. An Executive is supervised by higher level executives, board of directors or stockholders.

  • A Manager manages the operational affairs of the organization as a whole, or a major function of an operating division. 

    • Within the Manager classification, there are personnel managers, who are responsible for supervising and directing the work of other managerial, supervisory and professional personnel within the organization, and functional managers, who are  responsible for managing and directing a core or essential function, component, or division of the organization. 

The L-1B visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in a specialized knowledge capacity. According to USCIS:

  • A specialized knowledge individual is one who possesses special knowledge or advanced knowledge. 

    • Special knowledge is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry;

    • Advanced knowledge is knowledge of, or expertise in, the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.

  • Specialized knowledge need not be proprietary, unique, or narrowly held throughout the company, but must be advanced or complex, primarily gained through prior experience with the petitioning employer, and not easily transferable or taught to another individual.

An added benefit of the L-1  visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in L-2S status may work without applying for work authorization in the United States.

TN USMCA Professionals


The United States-Mexico-Canada Agreement (USMCA), enacted on July 1, 2020 to replace the 1994 North American Free Trade Agreement (NAFTA), facilitates travel to and employment in the U.S. for certain Canadian and Mexican citizens. 


USMCA created the TN visa classification for eligible Canadian and Mexican professional workers to be employed in the U.S. in certain professions, up to three (3) years, including but not limited to: accountants, architects, computer systems analysts, economists, engineers, graphic designers, hotel managers, industrial designers, interior designers, landscape architects, lawyers, librarians, mathematicians, dentists, pharmacists, and a full-range of scientific occupations. For a full list of the qualifying occupations, please visit: https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/16_Temporary_Entry.pdf.   

To qualify for a TN visa, the applicant must:

  • Be an Canadian or Mexican citizen;

  • Have a legitimate offer of employment in the one of the qualifying occupations listed in the USMCA Appendix 2 list of professions; and

  • Possess the required academic background or other qualifying credentials for the specialty occupation. Each USMCA profession lists various educational and/or employment experience requirements for the position, which may include: a Baccalaureate or licenciatura degree; a State, Provincial or Federal license; three years' of relevant employment experience; a post-secondary diploma or certificate; or a licenciatura degree only.

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