E-3 Visa Roadmap

The E-‑3 classification is based on a treaty between the United States and Australia and is available only to citizens of Australia coming temporarily to the United States to fill a U.S. employer’s . A specialty occupation position requires the employee to hold at least a bachelor’s degree or its equivalent and to apply specialized knowledge to perform the duties and responsibilities of the position. Specialty occupations generally include positions in accounting, architecture, arts, education, engineering, law, mathematics, medicine, and management and executive positions where a specific education is required to perform the duties. For example, “Vice President of Engineering” or “Product Manager” would likely qualify when it is demonstrated that the job requires an engineering degree.

In this regard, the criteria for obtaining E-3 status are very similar to those for the H-1B classification, except for fashion models of distinguished merit and ability, to whom E-3 status is not available.

There is a numerical limit on the number of Australian professionals who can obtain E-3 status each year. However, this annual cap of 10,500 E-‑3 slots is never reached, meaning that—unlike in the H-‑1B category—no otherwise qualified E-‑3 applicant should expect to be denied simply because the annual quota has been met.

Could possibly add in examples of “specialty occupations” as there are none in the document [GS1]

E-3 Requirements

The applicant and the U.S. employer must meet the following basic requirements:

  • The applicant is a citizen or national of Australia.
  • The U.S. employer is extending the applicant a temporary job offer for a specialty occupation position that requires at least a bachelor’s degree or its equivalent.
  • The applicant has the necessary credentials: (a) A minimum of a bachelor’s degree in the field of the specialty occupation; or (b) Verifiable and recognized education, experience, or training found to be the equivalent of a bachelor’s degree or higher in the field of the specialty occupation, along with a relevant history of increasingly responsible positions. As a rule of thumb, three years of relevant work experience is the equivalent of one year of university education.
  • If the specialty occupation requires a license, the applicant must either have such a license or demonstrate that he or she will obtain a license within a reasonable period of time after entering the U.S.
  • The U.S. employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL) before the applicant can obtain an E-3 visa or apply for an extension or change of status to E-3.
  • The applicant must intend to depart the U.S. once his or her E-3 status terminates.

The Federal Identification Number (FEIN) Verification Process

Employers who have never filed an H-‑1B or E-‑3 petition must ensure that their federal employer identification number (FEIN) is registered and verified. This process includes providing the organization’s SS‑4 letter, on which the IRS assigned their FEIN, to the DOL. This allows the DOL to confirm the FEIN belongs to the company and enter the information into DOL systems.

In place of that letter, employers may submit at least two documents from third parties showing the employer’s FEIN. These documents may include a tax return, IRS Form 941, a bank letter, or a state employment record. Once requested, the FEIN registration takes three to five business days to complete.

The Labor Condition Application Process

The U.S. employer must certify to the DOL that, in hiring the Australian specialty occupation worker, it will protect similarly employed U.S. workers in the same geographic area. To this end, the employer electronically files Form 9035 or what is also known as a Labor Condition Application (LCA) with the DOL. The LCA is typically certified and returned in five to seven business days. This filing certifies:

  • The employer is paying the higher of either the wages that it pays its own similarly employed workers or 100 percent of the wages paid to similar workers employed in the same geographic
  • The working conditions of U.S. workers employed at the employment site are not adversely affected by the hiring of the Australian professional.
  • There is no strike/lockout at the worksite nor in the occupation for which the Australian professional is sought.
  • The employer has given notice to current employees that it is seeking to hire an E-‑3 This is done by posting a notice in two conspicuous places for 10 consecutive business days, or providing communication to the designated collective bargaining representative if applicable. The employer may also qualify for an electronic notification, in certain cases.

In addition, the employer must maintain a file that is open to the public—the “Public Access File” (PAF)—and follow through on the certification filed with the DOL or they violate the law. Noncompliance can result in the employer being required to pay back wages and/or the imposition of civil monetary penalties.

An otherwise valid LCA which was approved based on an H-‑1B job offer cannot be used for an E-‑3 application.

Documentation

All applicants for E-3 status, whether filing through a U.S. consulate abroad or with U.S. Citizenship and Immigration Services (USCIS) from inside the United States, must provide the following documentation:

  • A certified and signed Form 9035 LCA specified for “E-3 Australia”.
  • A letter from the prospective U.S. employer with a detailed description of the position offered, including job title, specific job duties and responsibilities and salary.
  • Evidence that the position qualifies as a specialty occupation.
  • Information about the U.S. company, such as corporate tax returns, financials, and company brochures or website excerpts.
  • Certified copies of the applicant’s educational credentials, including transcripts, degree certificates, and education evaluations (where applicable).
  • The applicant’s resume and proof of any relevant job experience.
  • A certified copy of any required professional license or permit or evidence that such license or permit will be obtained within a reasonable period after entering the U.S. (where applicable).
  • Evidence of any previously approved U.S. nonimmigrant petitions or visas issued.

E-3 visa applications submitted at a U.S. consulate abroad (recommended option) also need:

  • A passport that is valid for at least six months beyond the intended period of stay in the U.S.
  • A printout of the barcode page of Form DS‑160, Online Nonimmigrant Visa Application.
  • Proof of payment of the machine-readable visa (MRV) fee.
  • Any other documentation listed by the U.S. consulate abroad.

Applications for extension of E-3 status or for change of status filed with USCIS from inside the U.S. also require:

  • A copy of the passport biographical page and any passport pages with visa stamps.
  • Form I-‑129, Petition for a Nonimmigrant Worker, completed and signed by the prospective employer.
  • Check covering the I-129 government processing fee.
  • Evidence of maintenance of status, such as recent pay statements, W‑2, I‑94 record with travel history, and any previous I‑797 Approval Notices.

Admission

An initial stay is granted for two years, the validity period of the LCA. After that, E-3 status can be extended indefinitely in two-year increments, for as long as there is a valid LCA and all other requirements are met.

Family

The E-3 applicant’s spouse and unmarried children under the age of 21 are eligible to apply for spousal E-3S or dependent E-3Y status to accompany or join the E-3 principal in the U.S. The E-3 principal’s dependents do not have to be citizens or nationals of Australia. E-3 spouses and children may attend school part-time or full-time. E-3 spouses are automatically authorized to work, and any valid I-94 Arrival/Departure Record is considered proof of work authorization.

Not sure if this means they are allowed to work in any status or if they need specific status to work? [GS1]

Strategies/Options

Nonimmigrant Intent – E-3 status is temporary in nature, meaning the applicant must intend to leave the United States upon termination of E-3 status. This intent can be evidenced by a clear written statement to that effect. But an E-3 applicant does not have to maintain a residence abroad and can move his or her entire household to the U.S.

Consular Filing Abroad – Filing an I‑129 petition with USCIS for an extension or change of status to E‑3 from within the U.S. may be a good option in some cases. However, some disadvantages are the higher filing costs and the remaining need to apply for an E-3 visa in case of later foreign travel.

Therefore, applying for an E‑3 visa at a U.S. consulate abroad is generally the recommended approach. While many U.S. consulates around the world will accept applications for E-3 visas, some may have less experience with the E-3 category, its eligibility requirements, and the Australian system of higher education than the consular posts in Sydney, Perth, and Melbourne.

Legal and policy sources:

Immigration policies and regulations are complex and frequently subject to change. The information contained in this roadmap is intended to provide you with a general overview and may not address your particular circumstances and needs. Serotte Law will assist you with the application and documentation process and answer any questions you may have about the E‑3 classification. Request a consultation or give us a call at 888-875-8110.

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