E-3 Visas for Australians

The E-3 is the new visa for Australian nationals who wish to work in specialty occupations in the United States. The immigration attorneys at May Law Group, LLC, can represent you in obtaining an E-3 visa. The E-3 visa has numerous advantages which many other types of working visas do not have, including the ability for spouses of E-3 recipients to apply for work authorization. Other than the normal non-refundable worldwide visa application fee, there is no special fee for an E-3 visa which makes the E-3 visa a cost effective visa for employers.

The E-3 is a new visa category only for Australians entering the United States to work temporarily in a specialty occupation. The definition of “specialty occupation” is one that requires:

A 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) as a minimum for entry into the occupation in the United States.

Please note that the job itself must also require a bachelor-level or higher degree. An E-3 visa holder must meet academic and occupational requirements, including licensure where appropriate, for admission into the United States in a specialty occupation. If the job requires licensure or other official permission to perform the specialty occupation, the applicant must submit proof of the requisite license or permission before the E-3 visa may be approved. In some cases where such a license or other official permission is not immediately required to perform the duties described in the visa application, the alien must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.

It is possible to use experience in place of education to qualify for an E-3 visa. 8 CFR 214.2(h)(4)(iii)(D), describes experience which can be used to establish the equivalency of a university degree. As a rule, three years of professional experience may generally be used as a substitute for each year of university-level education.

The United States-based employer of an E-3 visa applicant is not required to submit a petition to the Department of Homeland Security as a prerequisite for visa issuance. However, the employer must obtain a Labor Condition Application (LCA), ETA Form 9035 or ETA Form 9035E, from the Department of Labor. The validity of the E-3 visa should not exceed the validity period of the LCA. Currently there is a two year maximum validity period for E-3 visas. This validity may be renewed. The E-3 visa holder may enter the United States up to ten days prior to the start of his or her employment. A change of employer requires a new LCA and there must be less than a ten day gap between employers; the change of employers may be accomplished from within the United States.

The E-3 visa currently applies only to nationals of Australia as well as their spouses and children. E-3 principal applicants must go to the United States solely to work in a specialty occupation. The spouse and children of the E-3 visa holder need not be Australian citizens. The applicant needs to have a job offer from a United States employer before applying for the E-3 visa. The dependent must make a separate visa application, which involves most of the same steps as the principal applicant’s application, namely completing the required forms, paying the application fee, and scheduling a visa interview with a U.S. consular officer. The dependent does not need to provide the principal applicant’s Labor Condition Application (LCA) or evidence of employment, but needs to show that the principal applicant is the recipient of an E-3 visa by providing a copy of the visa or, if the applicant has obtained E-3 status in the U.S., the I-797 Approval Notice. The dependent may apply and arrange a visa interview at the same time as the principal applicant, or can apply and be interviewed later, once the principal applicant’s E-3 visa is issued. The principal applicant does not need to be present at the dependent’s interview. Each dependent must make a separate visa application, but children under 14 who are Australian citizens or permanent residents of Australia are not usually required to attend an interview. E-3 spouses are entitled to work in the United States and may apply for an Employment Authorization Document (Form I-765) through U.S. Citizenship and Immigration Service (USCIS).

An applicant for an E-3 visa cannot apply for an E-3 visa from within the United States. He or she must leave the United States before applying for an E-3 visa. However, he or she can apply for the E-3 visa at any U.S. Embassy or Consulate which processes nonimmigrant petition-based visas. Similar to E-1 and E-2 visa applicants, the E-3 must satisfy the consular officer that s/he intends to depart upon termination of status.

However, the E-3 visa applicant should contact the U.S. Consulate or Embassy where he or she plans to apply to check that the U.S. Consulate or Embassy accepts applications from non-residents, and for details of how to book the interview and current processing times. These will vary from post to post. E-3 visa applicants may also apply in Sydney, Melbourne, or Perth from within Australia.

If you change your employer while you are outside the U.S., you will need to obtain a new E-3 visa at a U.S. Embassy or Consulate overseas. You can apply for a new E-3 at most United States Embassies and Consulates worldwide.