E-3 AUSTRALIANS

The E-3 is a new visa category for Australian nationals who will perform services in the U.S. in a specialty occupation. The definition of a specialty occupation is the same as for H-1Bs: “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) 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.” There is an annual limit of 10,500 E-3 visas, though dependents and E-3s who are extending their stay with the same employer do not count toward the limit.

Qualifications

To qualify for an E-3 visa, an applicant must demonstrate that he or she:

  • has a legitimate offer of employment in the U.S.; and
  • the position he or she is coming to fill qualifies as a specialty occupation; and
  • is an Australian citizen (spouse and children do not need to be Australian citizens); and
  • has the necessary academic or other qualifying credentials; and
  • will stay temporarily in E-3 status; and
  • has the necessary license, if required, to practice the specialty occupation.

Advantages

  • Australians who normally would be eligible for H-1B status but wish to be employed by a cap subject employer may be employed
  • No prior USCIS application is required for those who will apply for the visa at a U.S. consulate.
  • E-3 dependents may apply for employment authorization from USCIS.
  • The E-3 visa is a temporary visa, but there is no maximum number of years that a person may remain in E-3 status. The initial period of admission is for up to two years, but it is renewable in up to two year increments indefinitely, provided the E-3 can demonstrate that heor she does not intend to remain permanently in the U.S.
  • J-1 Exchange Visitors who are subject to the two year home residence requirement may apply for an E-3 visa at a U.S. consulate and enter the U.S. in E-3 status; however they are not eligible to change status within the U.S. from J-1 to E-3.

Application Procedures

The prospective employer must obtain a Prevailing Wage Determination from the US Department of Labor. At the UW-Madison, the employing department should complete the Prevailing Wage Determination form, the Department Request form, and the Labor Condition Application Authorization form (all can be found on the H-1B section of the International Faculty and Staff Services (IFSS) web site) and submit them to IFSS. IFSS will submit the prevailing wage request to the Department of Labor. If the wage to be offered to the prospective E-3 is at or above the prevailing wage determination from DWD, IFSS will submit the electronic Labor Condition Application (LCA) to the Department of Labor for certification for a validity period of two years. If the prevailing wage is higher than the wage being offered, IFSS will contact the department. Once the LCA has been certified, IFSS will give the original certified LCA to the department to forward to the applicant if outside the U.S. or attach it to form I-129 if in the U.S. and applying for a change of status or extension of stay. IFSS and the department need to post the LCA in the same way as for the H-1Bs.

Application At a U.S. Consulate Outside the U.S. (does not need to be in Australia)

The applicant must schedule an appointment at the U.S. consulate and present:

  1. State Department Nonimmigrant Visa Application form
  2. Form ETA-9035 (Labor Condition Application) for E-3 Australia which was filed by the prospective employer and certified by the U.S. Department of Labor
  3. Proof of Australian citizenship
  4. A letter from the prospective employer describing the job duties, academic requirements, salary and anticipated length of stay (up to two years initially)
  5. Evidence of academic or other qualifying credentials. If the degree was not obtained from a U.S. university, it should be accompanied by a credentials evaluation. All documents not in English must be translated.
  6. In the absence of an academic or other qualifying credential(s), evidence of education and experience that is equivalent to the required U.S. degree.
  7. A copy of a license in the state of intended employment, if required to practice the specialty occupation, or if licensure is not necessary to immediately commence employment, evidence that the applicant will be able to obtain the required license within a reasonable time after admission.

Application Within the U.S. (change of status or extension of stay)

The department should submit a Prevailing Wage Request form to IFSS (see above).

Form I-129, pages 1-9, also must be completed by the department and submitted to IFSS. In addition to the I-129, submit:

  1. Proof of Australian citizenship
  2. A letter from the prospective employer describing the job duties, academic requirements, salary and anticipated length of stay (up to two years)
  3. Evidence of academic or other qualifying credentials. If the degree was not obtained from a U.S. university, it should be accompanied by a credentials evaluation. All documents not in English must be translated.
  4. In the absence of an academic or other qualifying credential(s), evidence of education and experience that is equivalent to the required U.S. degree.
  5. A copy of a license in the state of intended employment, if required to practice the specialty occupation, or if licensure is not necessary to immediately commence employment, evidence that the applicant will be able to obtain the required license within a reasonable time after admission.
  6. IFSS will attach the certified LCA form ETA-9035.
  7. Filing fee of $325for the form I-129 payable to USDepartment of Homeland Security. The $500 Anti-Fraud fee attached to the H-1B does not apply to E-3 applications.
  8. Copy of the applicant’s I-94 and/or I-797
  9. For any accompanying dependents, form I-539 with $290fee, copy of I-94(s) and/or I-797(s) and proof of relationship to the E-3 (birth/marriage certificate).

Note for Extension of Stay: Like the H-1B, there is an automatic extension of employment authorization for 240 days when a timely filed application for E-3 status is filed. Furthermore, USCIS currently does not accept applications for Premium Processing for E-3 extensions of stay.

Dependents

Dependents of E-3s do not need to be citizens of Australia. They are eligible to file to USCIS for employment authorization after admission to the U.S.in E-3 dependent status on form I-765. They do not need to be Australian citizens to be eligible for employment authorization.

E-3s may enter the U.S. up to ten days before the start date of employment, and may remain in the U.S. for up to ten days after the end of employment.