All About The E3 Visa For Australian Professionals - Frear Law

The E3 Visa is a fantastic US work visa that is reserved Australian professionals.

This guide discusses the E3 Visa benefits, requirements and application process.

e3 visa benefits

The Benefits

  • No Restrictive Cap—Much like the H-1b there is an annual limit for E3 Visas. But, unlike with the H-1b cap, the E3 limit has never come close to being reached. This means that those who qualify for E3 status will be able to freely apply at any time of the year as opposed to filing at the earliest possible date to avoid being shut out for the upcoming year.

  • Unlimited Renewals—E3 status is typically valid for two years. However, there is no limit to the number of times it can be extended.

  • Work Authorization For Spouses—Spouses can qualify for work authorization. This is a huge benefit for those of us with talented spouses who want to continue their career in the US.

e3 visa requirements

E3 Visa Requirements

  • Australian citizen or national
  • Professional employment in the US—The assignment in the US must require a specialty occupation and at least a bachelor’s degree or equivalent
  • Bachelor’s degree or equivalent experience in the relevant field
  • Professional license(if required for the job)
  • Intent to Depart—The Australian citizen/national must intend to leave the US when status ends
  • Labor Condition Application—The employer must obtain a certified labor condition application(LCA) from the US Department of Labor(DOL).

The Specialty Occupation Requirement

Specialty occupation has been defined as…

“an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and 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.”20 CFR §655.715.

In order to decide if a job requires a specialty occupation the adjudicating officer will review the job duties and the employee’s qualifications.
 

Professional Qualifications

The employee must meet the professional requirements for the “specialty occupation” in which they will be working. This basically means that the employee should have the bachelor’s degree(or higher) or equivalent experience required for the work.

The LCA

Overview of LCA Obligations

The LCA requires the employer to attest to a number of conditions. These include…

  • There is currently no “strike or lockout in the course of a labor dispute in the occupational classification at the worksite”;
  • The working conditions for the foreign national will not “adversely affect working conditions for similarly employed workers”;
  • Notification of the filing of an LCA to the employees’ bargaining representative for the position or, in the absence of a bargaining representative, notification to all employees in the affected position “by a physical posting in a conspicuous location at the worksite or other means such as electronic notification”; and
  • Payment, throughout the period of authorized employment, of at least “the actual wage level paid to other employees with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of intended employment, whichever is greater (based on the best information available at the time of filing the attestation). 73 Fed. Reg. 19943 (Apr. 11, 2008).

The Primary LCA Tasks

The main tasks associated with the LCA(which should be completed under the guidance of an immigration lawyer) include researching the prevailing wage for the job, preparing the physical posting notice, posting the notice at the worksite, preparing the actual wage memo and setting up a public access file.

e3 visa application process

The E3 Visa Application Process

There are two options for applying for the E3 visa. The best option will typically depend on the employee’s unique situation.

Change of Status

If the employee is in the US in valid status, they have the ability to apply(through USCIS)for a change to E3 status. This allows the employee and their family to stay in the US while the application is pending and avoid the cost of international airfare. As an added benefit, the spouse can apply for work authorization at the same time as the primary application. The main downside of opting for change of status is that the approval could take several months.

E3 Visa Application Through The Consulate

The advantages of applying for the E3 visa application(through a consulate) are speed and convenience. 

During normal times, the Australian national employee can get an appointment within 7-30 days of applying compared to change of status applications that commonly take several months.

If the employee is already outside the US or has plans to travel back to Australia soon, the application through the consulate is typically the way to go.*

*NOTE: During the pandemic, the lack of interview availability has resulted in more change of status applications. Please discuss your options with your immigration lawyer to help you make a sound decision.

Typical Documents Needed For The Application

  • U.S. company support statement;
  • Evidence of professional qualifications, such as certified copies of the foreign degree and credentials evaluation, a certified copy of the U.S. degree, experience letters, or a certified copy of professional license; and
  • Copy of approved labor condition application.

Conclusion

I hope this information helps you understand the basic E3 Visa advantages, requirements and application process.

Of course, there is a lot more to understand about the E3 visa before determining if it would be a viable option for you or your organization. 

A careful evaluation of your options is best accomplished by working with one of the many knowledgeable US immigration lawyers.

If you have any questions for me, you can contact me at ben@frearlaw.com.

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Benjamin Frear, Esq.

Immigration Lawyer For Entrepreneurs and High Growth Companies

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