Should I apply for E-3 visa classification through USCIS or at a U.S. Consulate?

The E-3 visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. This means that the job must require theoretical and practical application of a body of highly specialized knowledge and 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 U.S. The E-3 visa is available to nationals from Australia only and is very similar to an H-1B visa.  The E-3 visa is granted in increments of two years and can be renewed indefinitely.

Many clients ask if they should apply for the E-3 through a change or extension of status in the U.S., or if they should apply at a U.S. Consulate. Below we have outlined various considerations for each option.

There are several benefits to applying for the E-3 visa at a U.S. Consulate, especially if you apply at a U.S. Consulate in Australia. When you apply for the E-3 visa at a U.S. Consulate, you are eligible to get a 2-year visa stamp that will allow you to travel internationally.  If you are applying at a U.S. Consulate in Australia and your bachelor’s degree is from an Australian institution, you also do not need to get a credentials evaluation to demonstrate that your degree is equivalent to a U.S. degree. Additionally, U.S. Consulates generally take a less strict approach than USCIS when deciding whether a job qualifies as a specialty occupation. One potential downside to applying at a U.S. Consulate is the uncertainty of the timeline for getting an appointment. Consulates are still recovering from the impact of COVID-19 and there are still delays in visa processing which means applicants may need to wait weeks, or sometimes months, to get a visa appointment.

If you are in the U.S. in a valid status, you may have the option to change to E-3 status by having your employer file a petition with USCIS. The benefit of filing with USCIS is that you would not need to leave the country. You can stay in the U.S.  and start working once the petition is approved. E-3 petitions are also eligible for premium processing, which means you or your employer can pay the government $2500 to ensure a response within 15 calendar days.

However, if you file for a change or extension of status in the U.S. and your degree is not from a U.S. institution you should be prepared to provide a credentials evaluation to demonstrate that your degree is equivalent to a U.S. bachelor’s degree. Sometimes Australian degrees are granted after only 3 years of study and this can be an issue with USCIS, as they will closely scrutinize the credentials evaluation to make sure the degree is equivalent to a U.S. degree, which requires 4 years of study. Another issue with a change or extension of status is that USCIS often takes a strict approach regarding what qualifies as a specialty occupation, and they may issue a Request for Evidence asking for additional documents to prove that your position qualifies. Additionally, getting an approval from USCIS does not permit you to travel internationally. Once you leave the U.S. you will still need to submit an application to a U.S. Consulate, and they will need to adjudicate the case and issue you an E-3 visa stamp before you can return to the U.S. Finally, the filing fees are higher with USCIS than the visa fees at the Consulate.