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E3 Visa for Australians: An Overview
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The U.S. Department of State has published the regulations implementing the new E3 visa for Australians. With the publication of the final rule, Australians are now able to apply for E-3 visas to work in the United States.

What is the E-3 Visa Classification?

The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, signed by the President on May 11, 2005 established a new nonimmigrant visa category, E-3 visa for Australians. The Act provides for 10,500 new E-3 visas per fiscal year for Australian professionals seeking temporary work in "specialty occupations,'' as defined under the H-1B provisions of the Immigration and Nationality Act (INA).

Who qualifies for E-3 visa?

The new E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a specialty occupation.

What is a Specialty Occupation?

In general, a specialty occupation is one that requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States. In order to determine what constitutes a "specialty occupation" consular officers abroad will be guided by, and will apply, regulatory criteria already developed by the Department of Homeland Security for the H-1B classification.

What are the other requirements to qualify for E-3 visa?

The E-3 visa classification is numerically limited, with a maximum of 10,500 visas available annually. Spouses and children do not count against the numerical limitation nor are they required to possess the nationality of the principal.

Before an Australian national can file for the E-3 visa, a Labor Condition Application (E3 Visa LCA), containing attestations by the sponsoring employer related to wages and working conditions must be filed with and approved by the Department of Labor (DOL).

At the time of visa application, the visa applicant must present the consular officer with the original or copy of the approved E3 Visa LCA. However, if the applicant cannot provide the original, the consular officer, at his/her discretion, may accept a certified copy of the approval. The approved LCA represents DOL's certification that the employer has met the attestation requirements of the E-3 statute.

Does it require filing of a prior petition in US before visa issuance?

No petition to the USCIS is necessary. Instead, in the case of an employee seeking an E3 visa, the employee will present the necessary evidence for classification directly to the consular officer at the time of visa application. Such evidence will include the original or copy of the Labor Condition Application (E-3 Visa LCA) signed by the prospective employer and approved by the Department of Labor, a letter from the employer describing the employer and the position in the US, and the applicant’s qualifications for the position.

Procedures for the E3 visa for Australians are similar to those established for obtaining H-1B1 classification under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

CASE SCENARIO
Paul is a graphic designer in Melbourne, Australia. He and his wife have wanted to live and work in the US for a long time. Paul get a job offer from a company in Denver, CO and is now preparing to get his visa. The company sent him a certified LCA, a job offer letter, information about the company and a lengthy job description showing the need for a BS in graphic design to be able to do the job.

Paul gathers his college diploma and transcripts, awards and certificates for the work he is done and heads for his visa interview. He is well prepared and comes home with an E3 visa, and his wife has her E3 as a dependent. They finish packing their stuff, put the balance into storage at his parents place, and head for America.

What Supporting Documents are needed for E-3 Visa Application?

The following documents will be required to establish eligibility for E-3 visa issuance:
  • An approved Labor Condition Application (LCA), which the U.S. employer obtains from the Department of Labor.
  • Job offer letter from the prospective United States based employer
  • Evidence of academic or other qualifying credentials. If your degree and higher-level qualifications are from an Australian institution, you do not usually need to provide certified copies or evidence of their US equivalent, but you must bring to the interview a copy of any certificates and transcripts for the course of study.

    If your qualifications are not from an Australian institution, a certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree could be used to satisfy the “qualifying credentials”.

  • In the absence of an academic or other qualifying credentials, evidence of education and experience that is equivalent to the required U.S. degree.
  • A certified copy of any required license or other official permission to practice the occupation in the state of intended employment if so required. Where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that you will be obtaining the required license within a reasonable time after admission.

How to file an E3 Visa LCA?

Employers seeking to sponsor workers under the E-3 category must file the electronic LCA Form ETA 9035E, through the Department of Labor’s web site. The employer must follow instructions for electronic submission posted on the web site.

[NOTE:  An LCA may be filed by U.S. Mail only if a physical disability or lack of access to the internet prevents an employer from using the electronic filing system. Employers wishing to file LCAs by U.S. Mail may submit a written request to the Chief, Division of Foreign Labor Certification, establishing his need to file by U.S. Mail, including providing an explanation of how physical disability or lack of access to the Internet prevents him from using the electronic filing system. Employers may also be required to submit supporting documentation to establish physical disability or lack of access to the Internet.

If the request is approved, the employer may use Form ETA 9035 and sent it to ETA by U.S. Mail. When Form ETA 9035 is submitted by U.S. Mail, the form must bear the original signature of the employer at the time it is submitted to ETA.]   

How to apply for Change of Status to E-3 classification from within the US?

To apply for a change of status to obtain E-3 nonimmigrant temporary worker classification, Form I-129, Petition for Nonimmigrant Worker, must be filed with the USCIS along with supporting documents including a

  • Labor Condition Application;
  • Academic or other credentials demonstrating qualifications for the position;
  • job offer letter or other documentation from the employer establishing that the alien will be engaged in a specialty occupation and that he will be paid the higher of the actual or prevailing wage; and
  • if required, before the alien may commence employment in the specialty occupation, the necessary license or other official permission to practice in the specialty occupation.
Can spouse of E-3 nonimmigrant work in the US?

Yes. INA 214(e)(6) permits the spouse of a principal E nonimmigrant to engage in employment in the United States. As is the case for the spouse of a principal E-1 and E-2 nonimmigrant, the spouse of a qualified E-3 nonimmigrant may, upon admission to the United States, apply for an employment authorization document, which an employer could use to verify the spouse's employment eligibility. Such spousal employment may be in a position other than a specialty occupation.

We will continue to monitor the implementation of E-3 visa program and update you on the latest happenings at the consulates or the USCIS. In case you have any questions about E-3 visa program or your eligibility for E-3 visa, please contact us.

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