E-3 WORK VISA FOR AUSTRALIAN PROFESSIONALS

The E-3 temporary worker visa is designated for Australian citizens coming temporarily to the United States to work in a specialty occupation. A specialty occupation is defined as one that requires "theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree, or its equivalent, as a minimum requirement." Australian permanent residents are ineligible for this visa type unless they hold an Australian passport.

The spouse and unmarried children (under 21 years of age) of E-3 Visa holders are eligible for dependent visa status. The dependent spouse and children of an E-3 non-immigrant do not have to be Australian Citizens to be eligible for E-3D status (E-3 dependent visa).

Additionally, an E-3D visa holder is eligible to apply for employment authorization after arriving in the United States and are eligible for Social Security Numbers once they obtain their work authorization. E-3 visa holders are also eligible to attend school either full-time or part time.

One of the most common questions asked when applying for the E-3 Visa is the ‘demonstrate residence abroad’ condition. As a quick bit of background, the ‘demonstrate residence abroad’ provision applies to all visas which do not specifically allow for dual intent like the H-1B Visa.

Essentially dual intent as a provision that specifically allows for the visa holder so simultaneously pursue permanent residence while being in temporary visa status. Visas like the E-3 Visa, as well as the TN Visa, have a ‘no dual intent’ provision where the applicant has to demonstrate residence abroad.

In general, Australians on the whole are thought of as low risk non-immigrants and visitors to the United States in terms of people who are likely to overstay their allowed time. Many E-3 Visa applicants report when they visit the U.S. Consulate for their E-3 Visa interview they have not had to show any evidence demonstrating residence abroad and many others just had to verbally say ‘yes’ they intend to return. However, when you attend your U.S. visa interview it is always good to have proof of Australian residence on hand just in case.

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The type of Australian evidence that can be helpful to prove residence in Australia includes, but is not limited to:

- Close family ties in Australia (this is often a verbal proof and is easily verified by US consular officials)

- Significant asset ownership proof like mortgage document for home, car, business, etc.

- Bank statements with account history

- Australian tax returns

- Verbal mention of prior US visa visits where you obeyed the conditions of entry

- Proof of voting in Australia

- Australian Driver's License

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E-3 VISA FREQUENTLY ASKED QUESTIONS

Q: What is an E-3 Visa?

A: The E-3 is a visa category dedicated for Australian citizens going to the U.S. to work temporarily in a professional position (“specialty occupation”).

Q: What is the defnition of a specialty occupation?

A: The definition of "specialty occupation" is one that requires:

- A theoretical and practical application of a body of specialized knowledge; and,

-The attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States (for example, financial analyst, engineer, accountant, attorney, teacher, etc).

Q: Can my family accompany me?

A: Yes, spouses and children may apply for E-3 (E dependent) visas.

Q: May spouses of E-3 Visa holders work?

A: Yes. E-3 spouses are entitled to work in the United States with a valid Employment Authorization Document (EAD). Upon admission to the United States in E-3 status, they may apply for an EAD through U.S. Citizenship and Immigration Service (USCIS). It generally takes about 3 months for USCIS to adjudicate the application. The spouse may not begin work until they receive the EAD card.

Q: Must my spouse be Australian in order to apply for work authorization?

A: No, your spouse can be of any nationality to apply for work authorization as an E dependent. In addition, your spouse does not need to meet the bachelor’s degree requirement or have a sponsoring employer.

Q: If I do not have a job offer, can I enter the United States under the Visa Waiver Program?

A: You may only enter the U.S. under the visa waiver program for short trips (maximum of three months) for specific business (not job searching) or pleasure. If you have entered under the Visa Waiver Program, you may not work in the United States. You also may not change your status within the United States to an E-3 Visa if you arrived under the Visa Waiver Program.

Q: Is there a cap on E-3 Visas?

A: There is currently an annual limit of 10,500 E-3 Visas. E-3 dependents (spouses and children) are not counted toward this annual limit, nor are E-3 extension applications. We do not expect that the annual limit will be reached.

Q: Does my employer need to submit a petition on my behalf to the Department of Homeland Security (DHS) for an E-3 Visa?

A: The United States-based employer of an E-3 principal is not required to submit a petition to the Department of Homeland Security as a prerequisite for E-3 Visa issuance. However, the employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor. We will prepare and certify the LCA on the employer’s behalf.

Q: What are the employer’s obligations for E-3 Visa sponsorship?

A: The salary (or salary range) offered to the E-3 Visa worker must be posted at the place of employment. The salary offered must satisfy the Department of Labor’s prevailing wage requirements for the job offered in the geographic location. The employer must keep a public inspection file, which we will help prepare, as part of the requirements associated with the labor condition application (LCA).

Q: How long is the E-3 Visa valid?

A: The Department of State and DHS have agreed to a 24-month maximum validity period for E-3 visas. This validity may be renewed indefinitely.

Q: Can I renew the E-3 Visa? Is there a limit to the amount of times I can renew my E-3 Visa?

A: E-3 applicants are admitted for a two-year period, but the E-3 visa is renewable indefinitely, provided the alien is able to demonstrate that you do not intend to remain or work permanently in the United States.

Q: Can I work for multiple employers with my E-3 Visa?

A: Yes. However, each E-3 visa is employer specific. It is possible to apply for two part-time E-3 visas in order to work for two different employers.

Q: Can I change employers?

A: In order to work for a new employer, your new employer must sponsor you for a new E-3 visa.

Q: May I be self-employed under the E-3 visa?

A: No, you must work for a US employer.

Q: How do I apply for an E-3 visa?

A: You may make your appointment for an interview at a US Consulate abroad as soon as you have all the documents prepared. It is also possible to apply for a change of status through USCIS if you are already in the United States in another valid visa status (but not Visa Waiver status). However, you may not begin working in E-3 visa status until the E-3 visa petition is approved, and the next time you travel abroad you must apply for the visa at a U.S. consulate abroad.

Q: How long does it take to apply for an E-3 Visa?

A: The wait times at each Consulate vary. Generally, the E-3 visa will be issued two days after the appointment (though, again, this varies by Consulate). Applications submitted to USCIS generally take 4-5 months to be approved. At present, there is no Premium Processing (adjudication of the petition within 15 days for an additional $1,000 fee) option available for E-3 visas.

Q: May I apply at any Consulate?

A: Generally, you must apply at the Consulate in your home country or country of residence. It is also possible to apply at Consulates in Canada which accept jurisdiction over "third country nationals." Appointments and an in-person interview are required. It is important to plan in advance because appointments at US Consulates, especially in Canada, can be very backlogged.

Q: Can I apply for a green card while in E-3 status?

A: The immigration law does not specifically allow for dual intent, i.e., the intent to simultaneously pursue E-3 nonimmigrant and immigrant (green card) status. It is not yet clear how USCIS will view applications for green cards by E-3 visa holders. However, a number of alternative visa options may be available to you. We would be happy to set up a consultation to discuss these options with you.

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If you are an Australian citizen, the E-3 Visa can be easier to obtain than the H-1B Visa. E-3 Work Visas are temporary visas, meaning that when the visa expires, the individual has to leave the United States.

America's Treaty with Australia allows Issuance of the E-3 Visa

The Australia-United States Free Trade Agreement (AUSFTA) is a treaty signed between Australia and America in 2004, and it came into force in 2005. The treaty authorized the issuance of E-3 visas to work in America.

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