The E-3 visa, which is a nonimmigrant visa reserved for nationals of Australia, can be an excellent option for Australians who want to live and work for an employer in the United States. The visa can be compared to the H-1B visa in terms of its requirements. However, unlike the H-1B, the maximum number of E-3 visas has never been reached. As a result, the applicant for an E-3 visa does not need to enter a lottery, as is often required for those pursuing the H-1B visa.
What are the requirements for the E-3 visa?
In order to receive an E-3 visa, the applicant must be a national of Australia who is coming to the U.S. solely to work in a specialty occupation for a U.S. employer. Unlike the E-1 or E-2 visas, the E-3 visa is not restricted to international trade or investment. Instead, assuming the company is otherwise eligible and that it satisfies the application requirements, any U.S. employer can employ an E-3 worker.
The applicant must already have an offer of employment in the United States for the position in the specialty occupation. They must also meet the academic requirements and any other occupational requirements that qualify them for the specialty occupation. They must possess any licenses that are required for the occupation.
Finally, the E-3 applicant must satisfy the government that their stay will be temporary, and that they do not intend to permanently remain in the U.S.
What is a specialty occupation?
In general, a “specialty occupation” requires “theoretical and practical application of a body of specialized knowledge” and “the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent.” We discuss the “specialty occupation” requirement more in a separate post here.
The specific requirements for a specialty occupation are provided in the H-1B regulations, at 8 CFR 214.2(h)(4)(iii). To qualify for a specialty occupation, the position must meet one of the following requirements:
- Entry into the position must “normally” require, at a minimum, a baccalaureate degree or higher;
- The degree requirement must be common to similar positions in the industry, or, as an alternative, the employer can show that the position is so complex or unique that it can only be performed by someone with a degree;
- The employer usually requires a degree for the position; or
- The specific duties of the position are so specialized and complex that knowledge needed for the job is usually associated with having a baccalaureate degree or higher.
The person who wants to receive the E-3 visa (called the beneficiary) must also satisfy one of the following requirements:
- Hold a baccalaureate degree or higher required by the specialty occupation that was issued by an accredited college or university in the United States;
- Hold a foreign degree that is equivalent to a baccalaureate degree or higher required by the specialty occupation that was issued by an accredited college or university in the United States;
- Hold an unrestricted state license or certification that allows them to practice the specialty occupation in the state of employment; or
- “Have education, specialized training, and/or progressively responsible experience” that is equal to completion of a baccalaureate degree or higher in the United States, and “have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.”
What is the application process?
As described in an earlier post on the E-3 visa here, most individuals applying for an E-3 visa apply at a consulate. Their employer would file a Labor Condition Application (LCA) (Form ETA-9035) in addition to a Form DS-160.
However, an individual does have the option of applying to change to E-3 status (or to extend E-3 status) from within the U.S. Their employer would do this by filing a Form I-129 with U.S. Citizenship and Immigration Services (USCIS), in addition to the LCA. The DS-160 is not required if applying through USCIS.
The application should include the completed ETA-9035 (LCA) certified by the U.S. Department of Labor, documentation showing that the individual has the required academic or other credentials for the position, the job offer letter and documentation showing that the individual will be working in a specialty occupation and paid the prevailing or actual wage, and evidence that the individual has any licenses that are required for the specialty occupation.
How long will my E-3 visa or status be valid?
The E-3 visa is issued for a period of up to two years. Each time you enter the U.S., you may be granted up to two years of status.
If the individual applies through USCIS, USCIS will grant status for a period of up to two years. Extensions can be granted indefinitely, though the individual should be prepared to show that they continue to hold nonimmigrant intent (meaning that they plan to depart from the U.S. at the end of their valid status).
I am currently on an E-3 visa and want to change employers. Is that possible?
Yes, someone who currently has E-3 status in the U.S. can change employers, but there are several steps that are required before this change can happen. First, the new employer must obtain a certified Labor Condition Application for the position, and then they must file a Form I-129 application. You cannot start working for the new employer until the Form I-129 is approved by USCIS.
Can my spouse and children join me?
Yes. The spouse of an E-3 worker may be eligible to receive an E-3 dependent visa. Upon entry to the U.S., the spouse in eligible E-3 dependent status is able to work pursuant to their status, and does not need a separate employment authorization document. For more information on the ability to work pursuant to E-dependent status, please see our post here.
Both the E-3 worker’s spouse and children are permitted to study in the United States.
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