E-3 Visa Frequently Asked Questions

Kingfisher

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 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: What are the requirements for qualifying for an E-3 visa?
A: An Australian citizen in a specialty occupation must meet the general academic and occupational requirements for the position. In addition to the nonimmigrant visa application, the following documentary evidence must be submitted in connection with an application for an E-3 visa:
1.        Certified Labor Condition Application, filed with the Department of Labor.
2.        Evidence of a U.S. bachelor’s degree in the field or its equivalent.
3.        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 (3 years of professional experience is equivalent to one year of undergraduate study).
4.        Evidence establishing that the applicant's stay in the United States will be temporary (evidence of ties to Australia).
5.        If a license is normally required for the position, a certified copy of the required license or other official permission to practice the occupation in the state of intended employment or evidence that the license is not required to commence employment.
6.        Job offer letter (or other documentation) to substantiate that the work qualifies as a specialty occupation and that the applicant will receive the higher of either the actual or prevailing wage.
7.        Evidence of payment of the Machine Readable Visa (MRV) Fee, also known as the application fee.

Q: Can my family accompany me?
A: Yes, spouses and children may apply for E-3 (E dependent) visas.

Q: May spouses work?
A: 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 business 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 E-3 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)?
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 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 sponsorship?
A: The salary (or salary range) offered to the E-3 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 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?
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 he/she does not intend to remain or work permanently in the United States.

Q: Can I work for multiple employers?
A: No. The E 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 in the United States in another valid visa status. However, the foreign national may not begin working in E-3 status until the petition is approved, and the next time he or she travels abroad he or she must apply for the visa at a U.S. consulate abroad. If you are in the United States under the visa waiver program, you may not change status and must apply at a Consulate abroad.

Q: How long does it take to apply?
A: The wait times at each Consulate vary. Generally, the visa will be issued the day 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.

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.

Q: How do I get started?
A: Contact Sharon Press at 212-909-4128 or spress@fragomen.com. We will set up a consultation (by phone or in person) to evaluate your case, discuss timing and the application process, and address any relevant issues. The consultation fee will be applied toward your total legal fees if you decide to retain our firm. After signing our engagement letter, we will provide you with a checklist of required documents and begin preparing your case.