Updated: March 17, 2020
There is a new visa—but only for Australians. The E-3 visa category was established by US law in 2005 and provides for 10,500 new visas per year for Australian nationals who seek to work temporarily in the United States.
Q: Why is this visa available only to Australians?
A: In 2005 the US Congress added to the Immigration and Nationality Act a new subparagraph (INA § 101(a)(15)(E)(iii)) authorizing up to 10,500 visas a year for Australian nationals who meet the requirements. The E-3 visa is widely believed to have grown out of the negotiation of a trade agreement between the United States and Australia.
Q: What qualifications must I have?
A: The E-3 applicant must have either a US baccalaureate degree in a relevant field, or the foreign equivalent of that degree or the equivalent in a combination of formal education and work experience. An E-3 alien must meet academic and occupational requirements, including licensure where appropriate, for admission into the United States in a specialty occupation. If the job requires a license or other official permission to perform the specialty occupation, the applicant must submit proof of the requisite license or permission before the E-3 visa may be granted.
Q: What types of jobs qualify as a ‘specialty occupation’?
A: A ‘specialty occupation’ is defined as one which requires for entry a US baccalaureate degree or equivalent in a field related to the occupation.
Q: Must I have worked for the US employer previously?
A: No, a preexisting relationship with the prospective US employer is not required (here, compare the L visa for intracompany transferees).
Q: Is there a visa available for a spouse who wants to accompany an Australian E-3 to the United States? My spouse is not an Australian citizen.
A: The spouse of an E-3 visa holder and unmarried children under the age of 21, regardless of their nationality, are also eligible to apply for E-3 visas.
Q: Are there any restrictions on how much or little I must be paid by the US employer?
A: One of the requirements for an E-3 visa is that the prospective employer must have obtained a certified Labor Condition Application (‘LCA’) from the US Department of Labor. The LCA requires a number of attestations by the employer relating to wages and working conditions, including a promise that the employee will be paid the greater of the actual wage promised or the prevailing wage for the position in the geographic location where the E-3 applicant will be employed.
Q: What do I have to take with me to the Embassy when I apply?
A: In addition to the DS-160 confirmation sheet, proof of payment of the visa application fee, and other materials that will differ according to the embassy or consulate where the application is made (for example, prepaid envelope for return of passport after visa issuance), the applicant must present at the interview the following:
- LCA certified by the US Department of Labor;
- Proof that the prospective employment in the US constitutes a ‘specialty occupation’;
- Evidence that the applicant has the necessary academic qualifications for the job, either by reason of education, experience, or a combination of the two;
- Evidence that any applicable licensing requirements have been met;
- Job offer letter or other proof that upon entry to the US the applicant will be engaged in qualifying work and will be paid greater of the actual or prevailing wage; and
- Evidence establishing that his/her stay in the United States will be temporary.
Q: How long is the E-3 valid?
A: The validity period of the visa may not exceed the validity period of the LCA. The Department of State and the Department of Homeland Security have agreed a 24-month maximum validity period for E-3 visas. The E-3 visa is renewable.
Q: The E-3 sounds a lot like the H-1B visa. Which one is better for me?
A: The E-3 visa is similar to the H-1B visa for professionals, but the E-3 offers several advantages over the H-1B.
First: E-3s are so plentiful that currently they are available for employment to begin at any point in the year. H-1Bs, on the other hand, have in the past few years been exhausted very early in the fiscal year. Simple arithmetic shows the reason for the disparity. Only 58,500 new H-1Bs are available every year, for workers from all around the globe. By contrast, there are 10,500 E-3s available per year, and they are reserved for Australians only. This allows Australia to punch above its weight in the struggle for US visas—with a population of approximately 22.5 million Australia accounts for under 0.3% of the world’s non-US population, yet its citizens are guaranteed at least 15% of the combined annual total of visas for persons in specialty occupations.
Second: E-3 spouses may apply after entry to the US for unrestricted work permits and may commence employment as soon as the authorization has been granted. The spouses of H-1B visa holders (H-4s) are not eligible for employment authorization. If H-4s wish to work, they must seek a different status, usually as a result of employer sponsorship.
Third: An H-1B visa holder is limited to six years’ physical presence in the US in H-1B status. After exhausting that period of time, he or she must generally (there are some exceptions) leave the United States for a period of one year (not including any brief trips to the US) before being eligible to apply for another H or L visa. An E-3 visa holder may continue to apply for two-year E-3 visas as long as he or she qualifies for the classification—there is no maximum period of stay.
Fourth: The E-3 is faster and less expensive to obtain than the H-1B. The E-3 does not require that a petition be filed with the US Citizenship and Immigration Services (‘USCIS’) in the US. One applies directly at a US Embassy or consulate and pays only the standard visa application fee, currently US$205.00. The H-1B attracts not only a visa application fee but also USCIS filing fees that can be as much as US$2320.00 per H-1B worker, plus an additional US$1225.00 if accelerated processing is desired.
We hope that this article has been of interest and assistance, but it cannot possibly cover all permutations of the law and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.