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E-3 Visa for Australian Professionals

E-3-Visa

What is the E-3 Visa:

Established by the REAL ID Act of 2005, the E-3 visa classification allows for the admission of a temporary worker who is national of Australia and is entering the U.S. to perform services in a “specialty occupation.”

Who qualifies for the E-3 Visa:

To qualify for E-3 visa classification, you must be an Australian citizen who is seeking employment in a specialty occupation requiring possession of a bachelor’s degree or higher (or its equivalent), and possess the appropriate degree (or its equivalent) in the field in which the alien wishes to work.

Nonimmigrant aliens who are already legally in the United States may apply to change their status to that of an E-3 specialty worker and, eventually, apply to extend their stay in E-3 visa classification.

Duration of the E-3 Visa:

E-3 visa status is initially granted for a period of no more than two years. Extensions of stay may be granted indefinitely in increments not to exceed two years.

E-3 Visa Annual Quota:

Congress has established a yearly cap of 10,500 new E-3 visa workers.

For purposes of the cap, “new E-3 workers” are those who, coming from abroad, are admitted initially in E-3 classification or those who change their nonimmigrant status to E-3 classification or change employers while in E-3 status.

Spouse can work:

The dependent spouse of an E-3 temporary worker may apply for and receive work authorization.

If you are outside the US:

An alien seeking to be admitted in E-3 nonimmigrant classification at a U.S. Port-of-Entry must posses a valid E-3 visa issued by the U.S. Department of State.

If you are inside the US:

Aliens already in the United States may request a change of status to E-3 or extend their E-3 visa status by filing a Form I- 129 (Petition for a Nonimmigrant Worker) directly with the the USCIS Vermont Service Center.

The cost for filing the request for change of status or extension of stay is $325.

In addition to the Form 1-129, applicants must include the following documentation:

Proof of Australian nationality,
A letter from the prospective U.S. employer describing the alien’s occupation, the alien’s anticipated length of stay, and salary/remuneration arrangements,
Evidence that the alien meets the educational requirements for the position to be filled (a bachelor’s degree or higher or its equivalent in the specific specialty occupation),
Evidence that the alien meets any licensing or other occupational requirements, and
Evidence that the prospective U.S. employer has filed with the Department of Labor a labor condition application (LCA) specifically designated for E-3 Specialty Occupations.

Certain Specialty Occupation Professionals from Australia (E-3)

With the E-3 visa category, employers from the U.S. can hire certain Australian professionals as “specialty workers” and employ them in the country on temporary terms.

The E-3 category status is only valid for up to two years upon release, but there can be indefinite renewals, every two years.

Australian natives that meet the criteria of the E-3 category, particularly those who have no issues with dual intent, will find this option preferable to the H-1b status.

Prospective E-3 employers are not required to prove that they are unable to access suitable candidates or substantially demonstrate their need. Therefore, simplified processing (with USCIS or at a U.S. Consulate) can help in deploying Australian employees rapidly.

The E-3 process can bypass the USCIS-related petition and be entirely completed at a U.S. Consulate abroad, resembling more to the Treaty Investor/Trader visa than the H-1b.

In cases like these, first the employer contacts the Department of Labor to clear a Labor Condition Application for the potential employee, and then the latter completes an online form for a DS-160 Nonimmigrant Visa and goes through an interview for the E-3 visa at a U.S. consulate in his or her country.

Although the Labor Condition Application is burdened by regulatory issues, all told, employers have a valuable and efficient mechanism of boosting their competitiveness with the E-3 visa, via the employment of Australian professionals.

In addition, while a Congress-imposed, 10.5-thousand E-3 visa yearly cap is in place, it has never been reached, contrary to the cap of the H1b visas.

Prominent, qualified employees from Australia have found an attractive alternative in the E-3 process to clear employment status in the United States, along with their immediate family members.

Who May Petition

Employers in the United States may hire Australian professionals or skilled workers for E-3 positions.

The definition of a U.S. employer is as follows:

  • An individual, a company, or any other business entity with the capacity to engage a person to work in the U.S.;
  • Having the power to control that person’s work; and
  • Possesses an Internal Revenue Service tax ID number.

The broad nature of this definition makes it possible for an individual to be hired by one entity, who will also oversee his or her daily activities while being paid by a different entity, such as the foreign corporate parent of the U.S. employer.

Moreover, it maintains a sole shareholder corporation’s opportunity to file a petition on behalf of its foreign shareholder to be employed as an employee (the USCIS, however, may call upon other arguments to reject such petitions).

“Specialty Occupation”

The E-3 visa keeps the same “specialty occupation” with the H-1b visa, stating that the candidate employee must be engaged in an occupation with the following requirements:

(1) the use of highly specialized knowledge; and

(2) the acknowledgment of this specialized knowledge with a Bachelor’s degree at minimum, or equivalent experience in the field.

To be acknowledged as a specialty occupation, a position has to meet the following requirements per the USCIS rules:

  • A bachelor’s degree is the minimum educational requirement for the post;
  • the employer’s degree requirement is comparable with what other organizations use for similar positions;
  • a degree or an equivalent title is typically required for the position by the employer, or
  • the specific duties require knowledge with such a high degree of specialization that an individual must usually hold at least a Bachelor’s degree to be able to perform them.

The broadness of the definition is such that includes occupations in the subjects of engineering, architecture, mathematics, medicine and health, social sciences, law, business specialties, education, accounting, journalism, veterinary science, and many more.

Candidate Employee Qualifications for Specialty Occupation

To meet the qualification requirements for a certain specialty occupation according to the rules in effect, a prospective employee must be the holder of the relevant license as needed by the state of employment, have acquired the required degree for the occupation, or have equivalent experience in the said profession and a recognition for the acquired expertise through a number of position with progressive responsibility, in relation to the specialty.

The State Department or USCIS may acknowledge that an individual may be qualified as having the equivalent of an advanced degree through the following means:

  • Evaluation by an academic official with the qualification to issue college-level credit based on experience;
  • Evidence of the individual succeeding in a college-level equivalency examination such as the Program on Noncollegiate Sponsored Instruction (PONSI), or the College Level Examination Program (CLEP)’
  • Acknowledgment by a credential evaluation service that the education completed abroad is equivalent to US academic standards for the required degree;
  • The individual is certified by particular nationally-recognized professional organizations; or
  • The USCIS’ ruling that the employee has accumulated enough education, training and work experience to be considered equivalent to a degree.

Regarding the last point, the State Department and USCIS consider three years of training and expertise to be equivalent to one year of college-level education toward the employer’s lacking bachelor’s degree.

According to USCIS, five years of post bachelor’s experience are equivalent to a Master’s degree.

Many employees have found this alternative to a particular academic degree very useful.

Labor Condition Application

The employer needs to obtain a Labor Condition Authorization (LCA) from the U.S. Department of Labor for an E-3 recipient, as is also the case for an H-1b.

The application outlines the position’s title, salary, location, period of employment, and the determination method of the prevailing wage.

Most importantly, the employer is required by the LCA to affirm that:

  • The E-3 employee is offered a higher wage than what the employer pays for similar positions or for positions that have the same duties in responsibilities for the most part;
  • Employees working under similar conditions will not be adversely affected;
  • The position is not affected by a lock-out or strike taking place at the proposed workplace for this employee; and
  • Other employees, as well as their union, where applicable, have also been provided with a copy of the LCA.

The determination of the prevailing wage by the employer may be backed various alternative methods, as the circumstances dictate, including federal labor laws, a union contract (not usually applicable to most specialties), a prevailing wage determination by a State Employment Services Administration (SESA), an independently-published private wage survey, or an interval survey carried out by the employer.

Public File Responsibilities

During and after an E-3 employee’s term, the employer must keep certain documents within a public inspection file, which must accessible on demand to individuals asserting a labor complaint relating to the E-3 visa, and also to certain other interested parties.

This file must contain:

  • An LCA copy;
  • A documentation of the payable wage rate of the E-3 employee;
  • A documentation of the method the employer used to determine the payable wage rate of the E-3 employee;
  • A documentation of the prevailing wage’s determination;
  • A copy of the E-3 petition’s notice as given to employees and/or the union;
  • A summary of the benefits that US workers enjoy in the same occupation category as the E-3; and
  • If the employer has been involved in an acquisition, merger, or another corporate restructuring process, a document showing that the employer agreed to assume the commitments and obligations of the prior employer regarding the E-3 petition.

Consular Processing or USCIS Petition

A U.S. employer has the ability to hire a person in E-3 status after the person has obtained an E-3 visa from a U.S. consulate abroad and held that status upon entering the U.S.

During the application process, the employer has to clear an LCA from the State Department, and the candidate employee to submit a DS-160 application online, deposit the MRV application fee, and attend an interview at a U.S. Consulate for the E-3 visa.

However, if the candidate employee is already in the U.S. in a different nonimmigrant status (and not pursuing a Visa Waiver admission), the employer has the choice to file a petition for an E-3 change of status with USCIS. This method lacks in that the employee cannot start working prior to petition approval.

Because E-3 petitions cannot pass through the USCIS’ Premium Processing Service, judgment may delay for several months.

Still, USCIS filing may be appropriate in circumstances where a person is already in the U.S. in a different nonimmigrant status, is concerned that readmission may be denied on unrelated grounds or is required to remain physically present in the U.S. for other reasons.

It may also be used for an employee’s E-3 status extension.

Cap Issues

Although there is a Congress-imposed yearly cap of 10,500 E-3 visas, it does not apply when an employer is interested in extending a previously approved E-3 petition or when an employer wants the E-3 to be reissued due to a job change for an employee that already holds the E-3 status.

The cap also excludes E-3 visas issued to other immediate family members. However, contrary to the H-1b cap, when an E-3 employee changes employers the cap remains.

It should be noted, nevertheless, that since the E-3 visa category was established in 2005, the E-3 cap has not been reached.

It is one of the most compelling reasons why Australian professionals may find the E-3 visa an attractive option to the H-1b.

Change or Addition of Employers

The E-3 employee is not obliged to remain under his or her original employer for the duration of the petition grant.

However, contrary to the “portability” of the H-1b, the assumption of duties under a new employer is halted until either:

1) approval fort the new employer’s E-3 petition has been attained; or

2) the employee has left the U.S., reapplied for an E-3 visa at a U.S. consulate, and returned to the U.S. in E-3 status relating to the new employment.

Extensions

The employer may clear an unlimited number of two-year extensions to the E-3 status of an employee.

However, because the E-3 classification is considered a temporary status, employers must prove that the professional’s services are still needed, and, technically, USCIS or a consulate abroad could reject further extensions.

In addition, USCIS rules prohibit appellate review of extension rejections of nonimmigrant visas, and the State Department prohibits appeals of visa denials.

Termination of Employment

The E-3 must leave the U.S. when his or her employment is terminated, regardless of it being voluntary or not.

The employer is not obligated to compensate the costs of transportation. In case the E-3 finds new work, the applicable E-3 process must be restarted from the beginning.

The USCIS believes that when employment ends, the employee is placed out of status, and is therefore required to leave the country.

There is no ten-day grace period recognized by the USCIS, nor of any other duration, and it falls entirely upon the employee to take immediate and decisive action, in order to ascertain that his or her eligibility for immigration benefits in the future is not jeopardized due to unauthorized overstay. Great assistance in such circumstances may be offered by capable immigration counseling.

Dual Intent

E-3 status does not include the notion of dual intent – admission of a nonimmigrant who intends at the same time to become a permanent resident thereafter.

This is a significant difference from the opportunity offered to  H-1bL, and O employment-based non-immigrant category beneficiaries and remains the E-3’s main handicap.

Individuals looking to admitted with the E-3 status need to abandon the presumption that they are entering as future immigrants.

To accomplish this, the persons usually declares that he or she will leave the U.S. when his or her authorized nonimmigrant stay expires.

Nevertheless, proof of residence in a foreign country is not required for the demonstration of nonimmigrant intent.

In addition, the State Department and USCIS have made it clear that approval of an E-3 person’s immigrant petition may not be deemed the sole reason for U.S. admission denial or a request for the E-3 status to be changed or extended. Nevertheless, in such cases, the employee should opt for a nonimmigrant status that has the option of dual intent.

Dependents

The minor children and spouse of E-3 employees are free to come and reside with them in the United States for the entirety of the approved period, with no limitations regarding their nationality.

An E-3 visa holder’s dependent spouse may seek employment within that status by completing Form I-765 with USCIS. Children of E-3 holders cannot be authorized to be employed.

Moreover, the E-3 spouse may independently secure E-3 or another employment status.

E-3 dependents can also opt to gain admission to the country via business visitor (B-1) or tourist (B-2) visas, for which employment is unnecessary.

Frequent Questions

Can a Form I-129 E-3 petition go through Premium Processing Service?

No.

The candidate employee may apply for and receive an E-3 visa from a foreign U.S. consulate without needing a USCIS petition.

Can the spouse of an E-3 principal alien be employed in the U.S.?

Yes. However, the spouse must file Form I-765 with USCIS for employment authorization (Application for Employment Authorization).

Does E-3 status hold the effective equivalence of permanent residence to the U.S. for an Australian citizen?

E-3 status must be renewed two-yearly, but the number of permitted renewals is currently unlimited.

If it is the employer’s belief that a person will have to reside in the U.S. for a prolonged period of time, they should strongly consider sponsoring a permanent residency process.

Is the number of E-3 visas issued every year limited?

Yes, there is a cap of 10,500 E-3 visas per fiscal year. Nevertheless, since the E-3 visa program commenced in 2005, that limit has never been reached.

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