E-3 WORK VISA FOR AUSTRALIAN PROFESSIONALS
The E-3 work visa requires the presentation of an approved Labor Condition Application (LCA) and a specialized E-3 Job Offer Letter, and they can be complicated.
It was recently reported that 1 in 10 Australians applying for a specialty occupation E-3 visa to work in the United States are being rejected by American authorities, who are turning away people in less-sophisticated roles trying to dodge the immigration rules.
“Specialty occupations” are jobs that require the equivalent of an American 4 year college degree. For example, in the USA, a veterinarian technician is not a job that typically requires a 4 year college degree so it is not viewed as a “specialty occupation” job.
Can I Apply for an E-3 Visa if I am Already in the USA?
There are 2 ways to apply for an E-3 visa, and both involve the American employer filing and signing some documents for you.
- An Australian citizen can present the American employer’s documents at a U.S. Consulate/Embassy abroad (either in Australia or in other countries outside America) and request a 2 year E-3 visa; or,
- An American employer can mail a request to the American government to change your visa status to E-3 visa status if you are already in the USA so long as you did not enter using the ESTA Visa Waiver Program which does not allow a change of status. However, a person cannot start work for the American employer until the request to change to an E-3 visa is approved.
- If you already work for an E-3 employer in E-3 visa status, that employer can mail a request to the American government to request that your E-3 visa status be extended. You are allowed to keep working while the request is pending. NOTE: work authorization is not allowed if you are changing employers or adding an employer).
If An American Company Offers Me an E-3 Job, Does That Mean That They Will Automatically Get Me an E-3 Work Visa? Will They Know What to Do?
I am afraid not. Most American employers do not know how to fill out the documents for an E-3 work visa because it is not commonly done. There are many people in the USA from all different countries that are authorized to work without any special paperwork, so the American employer may assume that you are applying because you are already authorized to work.
Do I Have to Demonstrate That I Have Australian Residence to get the E-3 Work Visa?
Yes. Australian residence is not proven merely by showing one’s Australian passport and birth certificate. Australians who apply for an E-3 visa are supposed to be able to prove they have “ties to Australia.”
The type of E-3 Visa Evidence that can be helpful to prove “Ties to 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
- Australian Driver’s License
- Australian credit cards
- Proof of voting in Australia
- Australian annual pension report
However, when you attend your E-3 Visa interview it is always good to have proof of Australian residence just in case.
“I appreciate your services and it’s been a breeze working with you. You are very detail oriented and efficient. I will definitely recommend your legal services to my friends and if I should need any further assistance with immigration services, I will return to your law firm because you have shown me that you’re highly experience.”
Kelly L., Sydney, Australia (working legally in New York in E-3 visa status) 2016
“Thank you so much for all of your help and hard work with regards to my E-3 visa. I am so glad I found you when I did, my poor friend is still waiting for his E-3 visa. I look forward to working with you once again in the future.”
Ryan T., Perth, Australia (working legally in California in E-3 visa status) 2013
The definition of “specialty occupation” is one that requires:
- A complex job that requires theoretical and practical application of a body of specialized knowledge; AND,
- A Bachelor’s or higher degree (equivalent to an American 4 year college degree) that matches the job – for example, a finance degree for a financial analyst, an engineering degree for an engineer job, a DVM for a veterinarian position, etc).
The LCA is the document that confirms that (a) the job is registered as a job that requires an American 4 year college degree; and (b) that the employer pledges to pay the prevailing wage as determined by the USA Dept. of Labor (DOL).
When filing the LCA with the DOL, the American employer is officially recording their company information as well as the position and salary they will be paying.
Where do the Consular Officers Look to Find Out if My Position requires a 4 year bachelor’s degree and therefore is a specialty occupation?
Most of the consular officers check the online listing from the Dept. of Labor called the Occupational Outlook Handbook (OOH) to see if the job you are requesting an E-3 visa for requires a 4 year bachelor’s degree. However, the OOH is not the only place they are allowed to look.
Does my American Employer need to get an LCA (Labor Condition Application) certified on my behalf for an E-3 Visa?
Yes. American employers must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) after registering their federal tax id number with the DOL.
Can my Family accompany me if I get an E-3 Visa?
Yes, your spouse and unmarried children (under 21 years of age) 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).
May Spouses of E-3 Visa holders work?
Yes. E-3 spouses are entitled to work in the United States if they apply for a Employment Authorization Document (EAD). After admission to the United States in E-3D status, they may apply for an EAD through U.S. Citizenship and Immigration Service (USCIS). It generally takes about 3 months for USCIS to approve the work permit, which will allow them to work anywhere (even without a college degree), for multiple employers, and for their own business. E-3D visa holders are also eligible to attend school either full-time or part time.
Is there a Cap on E-3 Visas?
We do not expect that the annual limit will be reached (at least so far it has never been reached). The E-3 visa annual quota has usually reached 3,000 – 4,000 since its inception in October 2005.
Can you Direct Me to the “E-3 Processing Guidelines?”
The ” Processing Guidelines for E-3 Australian Specialty Occupation Workers and Employment Authorization for E-3 Dependent Spouses” has a lot more details.
More rules are found in the Foreign Affairs Manual (FAM).
What are the American Employer’s obligations for E-3 Visa sponsorship?
- Pay the salary to the E- 3 employee that is listed on the LCA.
- Issue paystubs to prove the salary paid matched the LCA.
- Issue a W-2 to the employee at the end of the year (not a 1099).
- Maintain a “Public Access” File at the worksite in case immigration inspectors make a surprise visit.
- The employer is allowed to terminate the services of an E-3 visa employee at any time for any reason. However, due to the immediate loss of legal status, if the 2 year E-3 visa time period is not up yet, the DOL requires that the employer offer to pay the employee’s plane ticket (“reasonable costs of return transportation due to early termination“) back to Australia (this can be a time limited written offer made to provide evidence that the employer made a good-faith effort to satisfy its obligation).
How long is the E-3 Visa valid?
The Department of State and DHS have agreed to a 24-month maximum validity period for E-3 visas. At the present time, the E-3 may be renewed indefinitely but the Australian citizen may be asked to prove Australian residence at any time. Provided the Australian citizen is able to demonstrate that they do not intend to remain or work permanently in the United States, the E-3 can be renewed either through the mail or at a U.S. Consulate abroad.
How do I add multiple employers with my E-3 Visa or renew my E-3 Visa?
It is possible to renew an E-3 visa and also to work for multiple American employers at the same time. There are a couple of different ways to renew an E-3 Visa or add multiple employers:
- An E-3 applicant can ask the Consular Officer at the U.S. Embassy in Australia to issue a new E-3 visa with one or more employers’ names and LCA numbers on the E-3 Visa stamp in their passport by presenting an LCA and Job Employment Letter from each employer. Please be aware here are reports of U.S. Embassies in countries other than Australia that do not know how to add multiple employers. There are blog articles on the internet from E-3 visa holders describing their E-3 renewal successes at U.S. Embassies other than in Australia (mostly Canada, Bahamas, Barbados or Mexico); or,
- If the E-3 applicant is already in the U.S. on an E-3 Visa working for the first employer, they can choose to mail an I-129/LCA + supporting documents + fee to the USCIS to request a renewal and/or request a second employer be added. Most E-3 visa holders do not choose this option because it is taking the USCIS 6-8 months to approve the mail in requests, and the E-3 visa holder cannot work beyond the expiration date of the original E-3 visa (or for the second employer) until they receive an approval notice in the mail.
Is a 3 Year Bachelor Degree from Australia Equal to a 4 Year Bachelor Degree From America? Can My Work Experience Be Added?
A 3 year bachelor degree from Australia is no longer equal to a 4 year bachelor degree from America for E-3 visa purposes. A 3 year bachelor degree from Australia must be combined with 3 years full time work experience (in the same field as the degree) in order to be “certified” as equivalent to a 4 year American bachelor degree for E-3 visa purposes.
Can the Consular Officer at the U.S. Embassy “Certify” that my Work Experience + my College is Equivalent to an American 4 Year Bachelor Degree?
No, they are not trained to evaluate education or work experience. There are private American educational equivalency companies that issue “equivalency certificates” that are accepted by American immigration officials. The Consular Officers at the U.S. Embassy are not trained to evaluate E-3 applicants’ education or work experience, so the certificate is required. The fees of the education evaluators range from $80 – $500 for an educational evaluation certificate, which does not expire and can be used multiple times.
Do all E-3 Visa Have to be Issued by a U. S. Consulate/Embassy in Australia?
Sometimes. If the applicant is asking for their first E-3 visa at a U.S. Consulate/Embassy it is normally best to ask for it at a consulate/embassy in Australia. However, some consulates/embassies in Canada are starting to get more comfortable with issuing the first E-3 visa (best to email them first and ask). I am also hearing reports that some Australians have had luck getting an E-3 visa stamp in their passport from the U.S. Embassy in Mexico City. But if the U.S. Embassy in Mexico/Canada or elsewhere says no, you would have to fly to Australia to go to the U.S. Embassy in Melbourne or Sydney.
Another alternative is to apply for an E-3 visa through the mail, if the applicant is already inside the USA. An application may be mailed to the USCIS to change an Australian’s status to E-3 Visa if they are already in the USA (but not in ESTA visa waiver status).
Can I Apply for an American Green Card (Permanent Residence) While in E-3 Visa Status?
Sorry, no. Some temporary visas allow a visa holder to apply for an American green card and others do not. When a temporary visa is a “dual intent” visa, the visa holder is allowed to pursue permanent residence (a green card) while being in temporary visa status.
For example, one of the “dual intent” visas is called the H-1B Visa.
Visas like the E-3 Visa for Australians, the H-1B1 Visa for persons from Chile/Singapore, as well as the TN Visa for Canadians and Mexicans, are “single intent” visas, which requires that the applicant prove residence in Australia — and why application for a green card is not supposed to occur.
May I be self-employed under the E-3 Visa?
No, you must work for a US employer.
What if my Employer Requires that I have an American State License?
If you don’t have your American State license yet (such as a license to practice veterinary medicine), make sure you have evidence to show the Consular Officer at the U.S. Embassy that you will be obtaining your license within a reasonable time after entering the USA in E-3 visa status.
How do I apply for an E-3 Visa?
You may make your appointment for an interview at a U.S. Consulate/Embassy abroad using the DS-160 online form as soon as you have all the documents prepared by your American employer. As mentioned above, it is also possible for the American employer to apply through the mail for a change of status to E-3 Visa status if you are already in the USA in another valid visa status (but not ESTA Visa Waiver status).
How long does it take to apply for an E-3 Visa?
It depends upon how long it takes your American employer to prepare their portion of the documents, which include providing you with company information, a certified Labor Certification Application (LCA), an E-3 job offer letter, and job description showing that a college degree (the same one you have) is the minimum requirement.
- If applying from outside the USA, the wait times for an E-3 Visa interview at each U.S. Consulate/Embassy varies. It may take 2-4 weeks to get an interview appointment. Generally, the E-3 Visa is issued two to ten days after the E-3 Visa interview (though, again, this varies).
- If applying for an E-3 Visa from inside the USA through the mail, applications submitted generally take 6-8 months to be approved. At the present time, there is no Premium Processing (expediting the application within 15 days) option available for E-3 Visas.
Call (619) 235-8811 or email Danielle Nelisse, an E-3 visa lawyer, at email@example.com to discuss your E-3 Visa at no charge. Kindly read this blog article carefully before calling.
UPDATE: BLOG ARTICLES ABOUT GETTING E-3 VISA RENEWED IN MEXICO CITY:
Getting our E3 Visas Renewed in Mexico City!