For Australian nationals seeking to live and work in the United States, an E-3 visa may be an excellent option. The E-3 visa classification is only available to Australians, and permits Australian nationals to work in a “specialty occupation” for a US employer. Unlike the E-1 and E-2 visas, the E-3 visa is not limited to employment that is directly related to international trade or investment. Instead, the E-3 visa is very similar to the H-1B visa, except it does not have a cap that generally is used up quickly and as such is not subject to a lottery system. E-3 visa dependent spouses and children accompanying an E-3 visa holder are also eligible for the visa and unlike an H-1B visa, an E-3 spouse is permitted to apply for work authorization. The E-3 visa is limited to 10,500 visas issued per year (but the cap does not get used up), and are valid for two years. Note that the 10,500 cap applies only to E-3 applicants applying for the first time or who are otherwise obtaining E-3 status for the first time. Finally, Unlike the H-1B visa, there is no maximum number of extensions for an E-3 visa. All in all a great visa for Australian nationals!
What are the Requirements of the E-3 Visa?
In order to qualify for an E-3 Visa, an applicant must show:
- That he or she is a national of Australia. A copy of the applicant’s Australian passport is sufficient to prove the applicant’s nationality.
- That he or she has a job from a U.S. company. A job offer letter or other documentation from the prospective employer needs to be included in the application.
- That he/she meets the educational requirements:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university; or
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s 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)
- The sponsoring company must also file a Labor Condition Application (LCA) with the Department of Labor. A LCA is an application submitted to the Department of Labor that provides specific information about the applicant, the job for which the E-3 visa is sought and the wage that the prospective employer commits to pay the E-3 employee. The company does not have to do any formal recruitment efforts but instead just has to attest to the fact that hiring the worker will not negatively impact the U.S. job market.
- If required, the applicant must provide evidence of a license or other official permission to practice in the specialty occupation if required as a condition of the employment sought. Where the license or other official permission is not required immediately, an alien must demonstrate that he or she will obtain such licensure or permission within a reasonable period of time following admission to the United States.
- Lastly, the applicant must provide proof that the stay in the United States will be temporary. This can be accomplished by producing a signed statement declaring the applicant’s intent to depart the country upon the expiration of the visa.
What does a “Specialty Occupation” mean?
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.
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.. 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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