E-3 Visa for Australians

E-3 Visa for Australians

Overview:
The E-3 visa classification is exclusively for Australian passport holders. Born out of the US-Australia Free Trade Agreement (2005), the requirements are similar to the H-1B, but the E-3 has a separate annual quota of 10,500 which, to date, has never been reached. It is therefore an excellent option for Aussies who are seeking to come to the US to work for a US-based employer in a professional role. The E-3 visa, if approved, is valid for a period of 2 years. It can be renewed indefinitely every 2 years, as long as the E-3 visa requirements are met.

E-3 Visa Requirements:

E-3 Visa Requirements:

1. US-based employer: you must have a legitimate job offer from a US-based employer. That employer does not need to be a US company, but must have a presence in the US and be sufficiently established and profitable to be able to pay you the required wage for the job (see further below).

2. Specialty occupation: the offered position must be a professional role, in that it requires a theoretical or practical application of a body of knowledge in a speciality field(s).

3. Equivalent of a US Bachelor’s degree in a field related to the specialty occupation: you must hold a university or college degree that is considered to be equivalent to a US Bachelor’s degree, and that degree must be in a field related to the offered position. If you do not meet this education requirement, years of relevant prior work experience can sometimes be used to obtain an equivalency to a US Bachelor’s degree. You should consult immigration counsel further in this regard.

4. Be paid at least the US Department of Labor “prevailing wage”: your employer must post a Labor Condition Application (LCA) at your proposed workplace attesting to the fact that your US employer will pay you at least the prevailing wage for your occupational category and seniority in the geographic location of the job. Once the LCA is posted, it is then submitted to the Department of Labor to be certified. This requires that you must be on US payroll. Your US-based employer should also be prepared to provide financial document to establish that they have the means to pay you the prevailing wage. Like the validity period of the E-3 visa itself, the LCA is also valid for a period of 2 years and you must always have a valid LCA during the period of your E-3 employment. The Department of Labor also requires that the LCA be part of a “Public Access File” which is to be maintained by your US employer and must be available at any time for public inspection.

5. It is expected that you will be primarily based in the US during your E-3 employment.

6. You must work for the sponsoring employer in the role and location for which you are being sponsored (so freelancing/self-employment, etc. is not allowed).

E-3 Visa Application Process:

E-3 Visa Application Process:

The E-3 visa application process is relatively simple compared to many other US visa categories.
Leading up to making the E-3 visa application, the most significant step is posting, submitting, and obtaining certification of the LCA (as outlined above), which can take around 10 days.
Once all documentation is ready (see further below), you can make your E-3 visa application directly at a US Embassy/Consulate abroad, or by filing a Form I-129 with the USCIS.

In most cases, applying for the E-3 visa directly at a US Embassy/Consulate abroad will be the best option. While it is preferable that you make your E-3 visa application in Australia, many other US Embassies/Consulates throughout the world are willing to accept E-3 visa applications from Australian nationals. You should consult immigration counsel further in this regard.

If you are in the US in another visa category (note: if you are in the US under the visa waiver/ESTA program, this does not apply) or you wish to change E-3 employers, or you wish to extend/renew your current E-3 visa status, then you also have the option to file a Form I-129 with the USCIS (note: you must also file a new LCA). However, there is currently no option to file the Form I-129 under the premium processing service for E-3 visa applications, so (depending on current USCIS processing times) it may still be quicker to depart the US and apply for the E-3 visa at a US Embassy/Consulate abroad. You should consult with immigration counsel further in this regard.

Family Members of E-3 Visa Applicants:

Family Members of E-3 Visa Applicants:

Family members of E-3 beneficiaries (spouses and children aged under 21 years) can apply for E-3 dependent status for the US. They need not be Australian nationals.

Spouses of E-3 beneficiaries can also apply for their own separate work authorization once they have entered the US in valid E-3 dependent status. A separate Form I-765 application for employment authorization must be filed with the USCIS. USCIS will take up to 90 days to adjudicate that application. E-3 spouses cannot commence employment in the US until they have had their Form I-765 application approved and received an Employment Authorization Document (EAD) from USCIS. The EAD will generally be issued for a period of up to 2 years.

Supporting Documentation for the E-3 Visa Application Process:

Supporting Documentation for the E-3 Visa Application Process:

Following are the basic documentary requirements for any E-3 visa application:

Valid Australian passport (not expiring for a period of at least 6 months and preferably longer);

Signed letter of support from your US-based employer that outlines the nature of their business, the specialty occupation, the job location and salary, and your qualifications for the role;

Signed certified LCA;

Education documents (or equivalent) to evidence that you meet the US Bachelor’s degree requirement in a field related to the specialty occupation;

Any licenses that may be required for your specific occupation;

Information regarding the US-based employer – annual report, financial statements, biographical information, etc.; and
If family members are applying for E-3 dependent visas, valid passports and marriage (spouse) and birth (children) certificates.

E-3 Visa Application Fees:

E-3 Visa Application Fees:

If applying directly for the E-3 visa at a US Embassy/Consulate abroad, you need only pay the visa application fee (generally around US$200 – varies from Consulate to Consulate) for each applicant (so you need to also pay that fee for each dependent family member).
If applying through USCIS, the filing fees are $325 for the Form I-129 application (and an additional $290 for dependent family members – one fee covers all dependents).

Other:
As a general rule, the E-3 visa is not a “dual intent” visa, meaning you should not apply to adjust status to US permanent resident (green card holder) from this visa category. However, this is not a “hard and fast” rule and you should therefore consult immigration counsel further in this regard if you wish to seek US permanent residence.

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