The E-3 visa is a work permit visa for Australian nationals who will work temporarily in a “specialty occupation.” By and large, they must have college degrees and they must plan to work in a position in the United States that requires such a degree. Current laws limit the annual number of qualifying foreign workers who may be issued an E-3 visa to 10,500 Australian nationals.
The E-3 visa is similar in many respects to the H-1B specialty worker visa granted to nationals of other countries. Important differences include:
- Spouses of E-3 visa holders may work in the United States without restrictions (unlike other US non-immigrant visas), even if they are of a different nationality
- The E-3 visa is renewable indefinitely (in two-year increments)
- The application process is much quicker
- Australian citizens applying for an E-3 visa are no longer subject to the 65,000 annual visa limit for H-1B visas.
- There is a separate annual quota of 10,500 E-3 visas, but this is much more generous to Australians than requiring them to compete with all other nations for H-1B visas
- Visas issued to spouses and children are not included in the E-3 quota and spouses and children do not need to be Australian citizens.
To qualify for an E-3 visa, you must demonstrate, among other things, that you:
- Are a national of Australia
- Have a legitimate offer of employment in the United States
- Possess the necessary academic or other qualifying credentials
- Will fill a position that qualifies as a specialty occupation
- If required, you must have the necessary license or other official permission to practice in the specialty occupation
What is a “Specialty Occupation”?
A “specialty occupation” is one that requires theoretical and practical application of a body of specialized knowledge and at least a bachelor’s degree or an equivalent. Some common specialty occupations are:
- Engineering
- Mathematics
- Physical and Social Sciences
- Medicine and Health
- Accounting
- Law
How To Apply
It is the employer, not the employee, who petitions the government for the visa. The employer will submit a completed Form I-129, Petition for Nonimmigrant Worker. The submission should include the following documents:
- A certified Labor Condition Application (LCA) that indicates that it has been approved to support an E-3 classification
- Academic or other credentials demonstrating your qualifications for the position
- Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
The visa is initially granted for two years, and may be extended indefinitely in two year increments. The visa petition is filed with the United States Citizenship and immigration Service (USCIS) if you are physically present in the United States. If you are outside the U.S. the visa petition is filed with the nearest U.S. consulate or embassy.
What is the Labor Certification Process?
Before they can petition the government for an E-3 visa for you, your employer must demonstrate to the U.S. Department of Labor that the admission of a foreign worker to take the position in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. The employer does this by filing a Labor Certification Application (LCA) with the U.S. Department of Labor attesting to compliance with the requirements of the E-3 program. The burden of proof is on the employer to establish the truthfulness of the information contained on the LCA.
The 4 Attestations of the LCA:
In order to obtain a Labor Condition Application, your employer will need to make 4 attestations in an effort to protect anyone who is already working for the employer. These are as follows:
- The employer must attest that you will be paid more than both the actual wage and the prevailing wage. The actual wage is what others in the company make who do the same job. The prevailing wage, on the other hand, is a wage number produced by the Department of Labor that takes into account the position and the geographic location of the job (for example, the prevailing wage for a software engineer in Los Angeles will likely be much higher than in Memphis).
- The employer must attest that hiring you will not negatively impact the present working conditions of the current employees.
- The employer must attest that there is no strike, lockout, or any other cessation of work is in effect.
- The employer must attest that all current employees have been notified of the intent to hire you and that it was not done in secret.
LCAs must not be submitted more than 6 months before the beginning date of the period of employment. The LCA is filed electronically. (The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access.)
LCAs are reviewed by the Department of Labor within seven (7) working days for completeness and obvious errors or inaccuracies.
Once a Foreign Labor Certification application has been approved by the DOL, the employer will be allowed to seek the E-3 immigration authorization from USCIS.
Change of Employer
It is possible to change employers and keep the E-3 visa. To change employers while remaining in the United States, your new employer must obtain a new certified Labor Condition Application for the position in which you will be employed, and must file a Form I-129 E-3 visa petition. You will not be able to start working for the new employer until the petition is approved.
If you lose your job and don’t immediately find a new one, the U.S. Citizenship and Immigration Service (USCIS) will consider you to be maintaining your E-3 status for up to 60 days (you must have that much time left on your existing E-3 visa, however).
Family of E-3 Nonimmigrant Workers
An E-3 nonimmigrant worker’s spouse and unmarried children under 21 years of age are entitled to dependent E-3 classification.
Children of E-3 workers may not be employed in the United States, but spouses of E-3 workers are considered employment authorized. This is a great improvement over the H-1B visa granted to people who are not Australian – their spouses are not authorized to work unless they obtain their own independent work visa.
Proof of Status for Employment
When you begin your new job, you will be required to fill out a Form I-9, Employment Eligibility Verification, and your employer will be required to keep a copy in their records. You will have to show some documentation that shows that you are eligible to work in the United States.
You may submit any of the following:
- An unexpired Form I-94 Arrival-Departure record with a notation reflecting E-3 nonimmigrant status or, in the case of your spouse, a Form I-94 with a new admission code for spouses of E-3 workers: E-3S. An unexpired Form I-94 reflecting this code is acceptable as evidence of employment authorization under List C of Form I-9.
- An unexpired Form I-94 with a notation reflecting E-3 nonimmigrant status, presented together with a notice from USCIS regarding the new admission code. As for your spouse, USCIS will send E spouses with a Form I-94 issued by USCIS that is notated with E-3, E-3D, or E-3R nonimmigrant status. These forms serve as evidence of employment authorization under List C of Form I-9.
- An unexpired Employment Authorization Document (EAD). Spouses of E-3 workers may request an EAD if they want one (it serves as quick proof that the alien is eligible to work in the U.S. but they are not required to do so. A Form I-766 EAD can be presented to employers as evidence of both identity and employment authorization acceptable under List A of Form I-9.
- An expired EAD with additional documentation to show the EAD is automatically extended
Certain E spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet the following conditions:
- They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same E nonimmigrant status; and
- They have an unexpired Form I-94 showing their status as an E nonimmigrant
Reciprocity
The Australian subclass 457 long stay business visa provides similar working rights in Australia for U.S. citizens. Recent legislative changes in Australian skilled worker visas has narrowed the scope of jobs under which an individual may be granted a visa. Even so, unlike the E-3 program, no degree is necessarily required to obtain a work visa in Australia as is the case with the E-3 Visa.
Can I Convert From H-1B to E-3 visa status?
Yes, it is possible. Unlike with H-1B visas, E-3 visa holders do not need to demonstrate that they are coming to the United States for a limited time nor do they need proof of a residence in their home country to which they can return.
Do I Need a Lawyer to get an E-3 visa?
Whether you are an employer or an employee, applying for an E-3 visa can be complicated. There is the initial step of obtaining a certified Labor Condition Application at the right time in the process, filing the visa petition itself, and once the petition is granted, obtaining the physical visa (which requires an appointment with a U.S. consulate or embassy).
An immigration lawyer can help avoid potential complications in filing an E-3 visa application, and can help if you are denied a Labor Condition Application, a visa petition, or execution of the visa itself.
