Immigration & Nationality Law News
E-3 Visa Overview
Temporary Visa for Professionals in Specialty Occupations from Australia: the E-3 Visa
E-3 non-immigrant visas provide for admission of professionals from the Commonwealth of Australia who enter the United States to work for a U.S. employer in a specialty occupation – one that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree in the specific specialty. E-3 visas share similar characteristics with H-1B specialty occupation visas, but nonetheless are a separate visa category with its own benefits and requirements.
Primary Requirements and Considerations for the E-3 Visa
- The foreign national must be a national of the Commonwealth of Australia.
- The foreign national and the U.S. petitioning employer must be in an employer-employee relationship. The U.S. employer must be able to hire, fire, supervise, pay, and otherwise control the E-3 worker. E-3 workers cannot be independent contractors of the U.S. employer.
- The U.S. position offered must be in a specialty occupation, meaning that (1) the particular occupation must normally require at least a bachelor’s degree in a related field of study; (b) the degree requirement must be common for the position in the industry; (3) the employer must normally require a degree or its equivalent for the position; or (4) the job must be so complex or unique that it can only be performed by someone with a bachelor’s degree or higher in a field related to the position. Jobs in fields such as engineering, math, and business, as well as many technology fields, often qualify as a specialty occupation.
- The foreign national must have at least a bachelor’s degree (or the equivalent) in a field directly related to the occupation. If a person has not completed a relevant bachelor’s degree, he or she may still be able to qualify based on a combination of education and related work experience. Three years of work experience in a field can equal one year of education. A formal evaluation of the work experience and education may be required.
- An E-3 applicant must meet academic and occupational requirements, including licensure in Australia where appropriate. In certain cases where a U.S. license or other official permission is required to perform the duties described in the visa application, but such permission or license is not available prior to entry into the United States, the applicant must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.
- The foreign national must be paid at least the actual or the prevailing wage for the job, whichever is higher, in the form of a salary/wage. The prevailing wage is determined based on the position in which the foreign national will be employed, specific requirements for education and experience, and the geographic location of the job, among other factors. The Department of Labor maintains a database of applicable current prevailing wage levels. Before an E-3 petition can be filed, the U.S. employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor. The prevailing wage is determined at the time of filing the LCA.
- If an E-3 non-immigrant worker seeks to change employers, the new employer must file a new LCA and a new E-3 visa application. The gap between the jobs must be 10 days or less.
- The foreign national must have the intent to depart the United States upon termination of the E-3 status.
E-3 Cap / Numerical Limits and Cap-Exempt Petitions
The E-3 visa has an annual numerical limit, or cap, of 10,500 visas each fiscal year. A visa number must be available at the time of filing the E-3 visa petition.
Application Process through Consular Processing
The foreign national submits the E-3 visa petition directly at the U.S. Embassy or Consulate abroad, rather than filing with U.S. Citizenship and Immigration Services (USCIS) from within the United States. The E-3 visa petition will be adjudicated by a Consular Officer after an in-person interview. If the foreign national is already in E-3 status in the United States and seeks to extend or change his or her non-immigrant status, the extension of stay or change of status petitions are to be filed with USCIS within the United States.
Period of Stay and Extension of Status
An E-3 petition is approved for up to two years, but may not exceed the LCA validity period. Petitions for extensions of stay may be filed indefinitely in increments not to exceed the LCA. The cap does not apply to E-3 extensions if the foreign national remains with the same employer named in the original petition.
Family Members of H-1B Visa Holders
Spouses and unmarried children under the age of 21 of H-1B visa holders may apply for E-3 dependent status. E-3 dependents need not have the same nationality as the principal and are not subject to numerical limitations. The same limitations on the period of stay that apply to the primary E-3 visa holder also apply to E-3 beneficiaries. E-3 spouses, but not children, are eligible to apply for an employment authorization document and may work in the United States.
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