Basic Use and Requirements

The E-3 visa is reserved only for Australian citizens who work in a “specialty” occupation.  A specialty occupation is one which:

requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of the equivalent of an American bachelor’s degree or higher in a specific specialty as a minimum for entry into the United States.

In short, an E-3 visa is available for most recognized professional positions.  It allows a person to work only for the company that filed the petition and is valid for two years at a time and can typically be extended indefinitely.

Eligibility Criteria

The job must pay the greater of the “prevailing wage” or the “actual wage” for U.S. workers at the same experience level.  Proof of meeting this criteria is documented with a Certified Labor Condition Application issued by the Department of Labor;

The job can be documented as a “specialty” occupation as defined above (e.g., it typically requires a degree in a certain field to be hired);

The employee can be documented as having the appropriate educational credentials and experience (usually a relevant bachelor’s degree and/or pertinent experience).

Advantages

Allows U.S. companies to hire foreign nationals whether or not they have any parents, subsidiaries, or affiliates abroad.

E-3 visas are not subject to an annual filing window, and although there is a quota for new filings there has not, to date, been a shortage of available E-3 visas.

Spouses of E-3 visa holders are allowed to apply for employment authorization – an option not available to H-4 visa holders.

Special Notes

The E-3 visa is generally “locked in” with respect to the company, work site, and wage, and any changes require that an amendment be filed with USCIS.

If the applicant is outside the U.S., they must make their application directly at a U.S. Consulate.

Processing for change of status or extension of status (already in the U.S.) can take 2 to 5 months; premium processing is not currently available for E-3 visas.

As the E-3 visa is a temporary intent visa, an applicant must be prepared to demonstrate their intention to return to Australia at the end of their visa.

STEPS OF THE CASE

Step 1 – Initial Preparation

Once the candidate accepts the job offer, HR provides the job description, salary, start date, employee contact information, and any other available documents to our office.  We then contact the employee and request they fill out our questionnaire and assemble the remaining required documents listed in our checklist.  The Employee or HR sends us the Employee’s remaining supporting documentation.

Step 2 – Labor Condition Application (LCA)

In all E-3 cases, companies are required to prove to the U.S. Department of Labor (“DOL”) that they are paying the higher of the following:  either the actual wage paid to other employees similarly employed in similar situations within the company, or the “prevailing wage” for that position based on either the DOL’s wage statistics or an available alternative wage survey.  The company’s compliance is demonstrated by completion and transmission of a Labor Condition Application (“LCA”) form to the DOL for certification.  Upon filing of an LCA, the employer is required to give notice to other employees by posting the LCA (either in hard copy or via an electronic posting).  An original signature on the LCA by HR is required before an application can be made at the Consulate or with USCIS.

Step 3 – The Visa Petition Process

Applying Outside the U.S.:

If an applicant is outside, the U.S., they must apply directly at the Consulate.  We will provide the applicant with a package of materials for the interview and schedule a call to go over what to expect at the interview:

Our cover letter summarizing why the applicant qualifies for the E-3 visa

Form G-28 (one signed by the petitioning company and one the applicant will sign)

A letter from the petitioning employer supporting the visa petition

Information about the employer or their annual report

Proof of applicant’s qualifications (i.e. educational documents or experience and academic equivalency evaluation of foreign degrees)

Information confirming job is a specialty occupation

LCA (with original signature)

In order to schedule an interview, an applicant must complete an online DS-160, pay the visa fee, and upload an electronic passport photo.  Once approved, an applicant will get their passport with the E-3 visa back several business days after the interview (processing times vary depending on Consulate and time of year). 

Applying within the U.S.:

If an applicant is already in the U.S. in another status or is looking to extend their current E-3 visa, we will apply through USCIS at the Vermont Service Center and provide:

Our cover letter summarizing why the applicant qualifies for the E-3 visa

Form G-28 (petitioning company only) with required filing fee

Form I-129 and FT Supplement

Information about the Employer

Proof of applicant’s qualifications (i.e. educational documents or experience and academic equivalency evaluation of foreign degrees)

Information confirming job is a specialty occupation

LCA (with original signature)

Once approved, USCIS will issue an approval notice (Form I-797).  On the next trip outside of the U.S., the applicant will need to apply for an E-3 visa at the Consulate.

Step 4 – Entry into the U.S. (if applied outside of U.S.)

When the applicant arrives at his/her port of entry (the airport or U.S. border crossing), a Customs and Border Protection (CBP) officer will examine the individual’s passport, visa and USCIS Approval Notice, and then stamp his/her passport.  An electronic I-94 will be available to access online at www.cbp.gov/i94  within 24 hours.

Applicants are always reminded to review their I-94 document to ensure it lists the proper employer and date of expiration of their status (status expiration should match the I-797 Approval Notice, or visa issued if no I-797 was issued, unless the individual’s passport expires beforehand – in which case the I-94 may be limited by the passport expiry).

 

** This memo is provided for informational and discussion purposes only.  It does not act as a substitute for direct legal contact on an individual basis **