The E3 Visa for Australians

The non-immigrant E3 Visa was created by the REAL ID Act of 2005 : It is the “Reciprocal Visas for Nationals of Australia.”   There are 10,500 E-3 visas allotted annually to qualified individuals.

Though the E-3 Visa is classified in the same category as E-1 (treaty trader) and E-2 (treaty investor) visas, E-3 visas share some similarities with H-1B Visas (workers in a specialty occupation). Therefore, the E-3 Visa can be understood as a slight hybrid between the two categories, and the E-3 visa has unique traits such as:

  • An E-3 candidate can work for any qualified U.S. employer – the hiring company does not have to be owned by Australian nationals;
  • An individual in E-3 status can file for H-1B status; and
  • An annual cap that is separate from the annual H-1B cap.

Note that the E3 visa is a not a dual intent visa like the H1B. However, there are many contradicting views on whether someone can file for a permanent residence while on an E3 visa.

E-3 Visa Requirements and Filing Procedure

Only Australian nationals (i.e. citizens of Australia by birth or naturalization) qualify for E-3 Visas. The individual must be entering to the U.S. to engage in a “specialty occupation” (as defined by INA § 214(i)(1)). To apply, an individual should apply directly for a visa at the local U.S. consulate; no prior USCIS approval is needed. There, the individual will have to present evidence supporting their E-3 application, including:

  • Proof of Australian nationality;
  • The individual will depart once their E-3 status expires (if the individual does not file for an extension);
  • Evidence that the individual is coming to America to engage in a “specialty occupation” (as defined by INA § 214(i)(7));
  • An employer’s signed copy of a Labor Condition Attestation that is certified by the Department of Labor;
  • Documentation illustrating that the E-3 candidate shall be paid actual or prevailing wages that satisfy statutory requirements;
  • The individual’s personal credentials that qualifies the individual for a “specialty occupation”, including academic background, specialized training, relevant job experience, and letters of recommendation; and
  • An E-3 visa number assigned to the individual under INA § 214(g)(11)(B).

Applying for an E-3 Visa from Within the United States

The Form I-129, Petition for Nonimmigrant Worker is used to apply for a change of status to obtain E-3 non-immigrant temporary worker classification.

Supporting Documents

Your Form I-129 must include the following documents:

  • A Labor Condition Application (LCA) which cannot be the same application used in a previous H-1B application.
  • Until the Department of Labor develops a new LCA for an E-3, the applicant should use the standard ETA-9035 and ask that it be annotated as an E-3 LCA
  • Academic or other credentials demonstrating qualifications for the position
  • Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
    If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation

It is critical that an E-3 candidate presents a comprehensive, compelling case of why he or she qualifies for a “specialty occupation.” Generally, E-3 classifications are valid for two 2 years, unless the Labor Condition Attestation expires before that period. Though E-3 Visas use the same “specialty occupation” standard as H-1B visas, E-3 visa candidates are not subject to the annual H-1B caps or surcharges.

An E-3 candidate’s spouse and children also qualify for E-3 classification. Unlike the primary E-3 applicant, note that the E-3 candidate’s spouse and children do not have to be Australian nationals, nor are they subject to the annual E-3 cap. Finally, the E-3 candidate’s spouse may also apply for U.S. work authorization.

If you need help for your E3 Visa, please call us at 510 7425887