YOUR E-3 VISA GUIDE

Overview

The E-3 visa is an option reserved solely for Australian nationals coming to the United States to perform services in a specialty occupation. Regulations require that applicants apply their body of knowledge in a professional field and that they have attained a bachelor’s degree, or its equivalent.

The Basics

In order to qualify for an E-3 Visa, one must:

1.     be a national of Australia;

2.     have a legitimate offer of employment in the United States;

3.     possess the necessary academic or other qualifying credentials, and

4.     fill a position that qualifies as a specialty occupation.

The Process

The basic requirements for an E-3 visa are fairly straightforward. Below we will outline the process for applications filed both within the U.S. as well as at a U.S. Consulate abroad.

Domestic Filings

E-3 applications filed within the United States must be filed with the USCIS. Regulations require that these applications include the following:

1.    Form I-129, Petition for Nonimmigrant Worker. This form is used to apply for a change of status to obtain E-3 nonimmigrant temporary worker classification.

2.    LCA (Labor Condition Application) Note: if you previously filed an LCA in a previous H-1B application, you must fill out a new one

3.    Supporting Documentation: Every E-3 petition should include your academic or other qualifying credentials, a job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and will be paid higher than the actual or prevailing wage, and if relevant, you must have the necessary license or official permission to practice in the specialty occupation.

Consular Processing

In cases where the E-3 applicant is outside of the United States or otherwise ineligible to file domestically, the application must be processed at a U.S. Consulate abroad. The Consular process is quite similar to the domestic process outlined above with the exception that the applicant must attend an interview in order to obtain the visa.

More specifically, the E-3 applicant is still required to complete Form I-129. Upon approval of Form I-129, USCIS will forward a Form I-797 (Notice of Action/Approval) to the petitioning employer, who will then forward it to the applicant. Keep in mind that Form I-797 is not a U.S. visa, as the visa must be obtained at a U.S. embassy or Consulate abroad.

Period of Stay/Extensions

The E-3 visa allows an initial period of stay of 2 years. Aside from some exceptions, there is no maximum number of extensions, with each extension lasting 2 years. You have 10 days to remain in the U.S. once your employment has concluded.

Additional Information

•   10,500 E-3 visas are issued per fiscal year. This number does not include renewing applicants, or spouses/dependents.

•   If you find that you are changing employers, your new employer must file a new LCA (Labor Condition Application) and a new E-3 visa application.

•   You are not permitted to begin work before your application has been approved, unless you are extending an already existent E-3 visa, in which case it is permissible for you to continue to work while your renewal is being processed.

•   If you are traveling with your family, it’s important to note that your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization, but your children are not.

Salary Requirements

Though there is no minimum salary required to qualify for an E-3, the salary you will be paid by your employer must equal or exceed one of two wage requirements. Your salary must equal either the prevailing wage, the salary paid in the field/area of practice, or the actual wage, which is paid to the workers at your employer’s company doing the job you will be doing. The salary you will be paid also has to be the higher of the two numbers.

Employment Requirements

The job itself will qualify provided that it requires a minimum of a bachelor’s degree in a specialty occupation. It is not enough that an E-3 applicant holds a particular degree; the job itself must also require a bachelor-level or higher for qualification. For example, someone with a degree in Business Administration seeking work as an Office Assistant would not be eligible for the E-3 unless the job actually required a bachelor degree or higher in order for any applicant to be considered.

If you have not attained a bachelor’s degree, it is possible for you to qualify based on work experience in the field. Three years of professional experience may generally be used to substitute one year of education. In this case, you would need to have at least 12 years of qualifying work experience in the specialty field. This must of course be supported by the necessary documentation outlining your work history, education, and training. A consular officer will ultimately determine whether or not the employment and educational information you provide meets eligibility requirements for the E-3 visa.

Employer Qualifications

In addition to your own qualifications, your employer will have standards to meet as well. An E-3 employer needs to show that hiring a foreign national is not going to adversely impact the labor conditions of similarly employed workers (wages, available work hours, etc.). The employer is also required to report any labor dissent that may occur as a result of the prospective E-3 employee’s filing an LCA. Additionally, they must show the LCA to their current employees and have it posted in at least two locations for a minimum of 10 business days.

Status Changes

Generally speaking, you may apply to change your nonimmigrant status if you were lawfully admitted to the U.S. with a nonimmigrant visa, your nonimmigrant status remains valid, you have not violated the conditions of your status, and you have not committed any crimes that would make you ineligible.

Benefits

•   Less expensive than the H-1B visa

•   Available year-round and not subject to the April lottery

•   Work authorization for spouse

•   Renewable indefinitely every 2 years

•   Able to travel outside of the U.S. and re-enter on a valid, unexpired visa

•   Can submit a consular application abroad

Challenges

•   May not engage in self-employment

•   Must demonstrate that you do not intend to remain or work permanently in the U.S.

•   Must prove that you have received at least a Bachelors Degree (or its equivalent)

•   Need to have a job offer from a sponsoring employer before you can apply for the E-3

•   First time E-3 applicants must apply in Australia or another U.S. Consulate outside of the U.S.