For many foreign nationals, the E-2 visa is an excellent visa option that permits the applicant to live and work in the United States. The E-2 visa requires an investor applicant to invest a substantial sum of money to either start or purchase a business in the United States that will provide a positive economic impact to the local community and hire U.S. workers. While Australian nationals qualify to apply for an E-2 visa, they also qualify for the E-3 visa. The E-3 visa shares many characteristics with the H-1B visa, with some notable advantages.
What is the E-3 Visa?
The E-3 visa classification was introduced to the U.S. immigration system in 2005. The classification permits Australian nationals with legitimate offers of employment in specialty occupations to live and work in the United States. The requirements for the E-3 visa is akin to the H1B visa (Like the H-1B, the applicant’s proposed employment must meet the standard of “specialty occupation employment” and must obtain an approved Labor Condition Application) by the Department of Labor), but also has notable advantages to the H-1B. While the E-3 visa is subject to a cap of 10,500 visas a year, this cap is rarely met with new applicants as only Australian nationals qualify for the visa. The E-3 visa can also be renewed indefinitely as long as the underlying employment qualifies as a specialty occupation. Additionally, E-3 spouses can get dependent visas and apply for work authorization (unlike H4 spouses). Lastly, the application fees for an E-3 visa are significantly lower than the H-1B filing fees.
What are the Requirements for the E-3 Visa?
In order to qualify for the E-3 visa, you must demonstrate that:
- Are a national of Australia (You have an Australian Passport)
- Have a legitimate offer of employment in the United States
- Possess the necessary academic or other qualifying credentials. This is defined as having completed a U.S. bachelor’s degree or higher degree that is required by the specific specialty occupation from an accredited institution.
- Instead of a BA the applicant can hold a foreign equivalent of a U.S. bachelor’s degree or higher degree in the specialty occupation, or have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. (This is very difficult to prove).
- Will fill a position that qualifies as a specialty occupation.
What is a Specialty Occupation?
One of the requirements of the E-3 visa is that the job meets the requirement of a specialty occupation. Essentially, the minimum requirement for the applicant is that he/she has a bachelor’s degree but the focus really is on the job. That is, even if an applicant has a bachelor’s degree, the government will look at whether or not the job requires one.
To qualify as a specialty occupation, the prospective job must meet the following criteria:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
How Do You Apply for an E-3 Visa?
For Australians seeking to apply for an E-3 visa from outside the United States, applying at a consulate abroad is the best option and to do this you must file a DS-160 online. The exact instructions of how to apply for the visa are usually outlined on the websites of the relevant consulates. After submitting Form DS-160, you will have to schedule and appear for a visa interview, and if approved, you will receive a visa stamp in your passport. You normally would bring your supporting documentation to the interview, but the Consulate could request that you send it before the interview. All first time Consular applications must be done in Australia. (for more information on consular processing, please click here)
If you are already in the U.S. on a visa (B-1 or F-1, for example), you may file a petition to change status to an E-3 status in the U.S. (This is almost never the preferred option) You would have to complete the Form I-129 and submit the relevant documentation discussed above. If your petition is granted, a Form I-797 Notice of Action/Approval will be sent to the employer, which should forward it to you. It is important to note that the approval means that you are now in E-3 status, (not that you have an E-3 visa) and a change of status does not permit you to reenter the United States if you leave. If you leave and want to reenter the U.S., you must file a new application for the E-3 visa at a U.S. consulate abroad.
While the decision of how to apply ultimately depends on your personal situation, we typically advise applicants to apply for an E-3 visa at a consulate.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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