Professionals, who are citizens of Australia, in addition to possibly qualifying for H-1B status, may also qualify for E-3 Australian Specialty Occupation Visa status.
A person seeking E-3 status must:
- Prove Australian citizenship
- Be coming to the U.S. to work for an employer in a specialty occupation that normally requires a bachelor’s degree or its equivalent to perform the duties of the occupation
- Possess a bachelor’s or higher degree equivalent to a U.S. degree from an accredited college or university. A person may satisfy this requirement by demonstrating he/she possesses the equivalent through any combination of college-level education, experience and/or personal accomplishments
- Intend to depart the United States upon termination of E-3 status
An E-3 visa applicant must have a job offer from a U.S. employer clearly indicating the individual will be employed in a specialty occupation. An E-3 visa applicant may not be self-employed.
E-3 Processing Procedures
All individuals seeking E-3 status must first secure a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The LCA, also known as an ETA 9035, is a form that is filed with the DOL.
When a U.S. employer files a LCA, the employer is attesting that it:
- Will pay the E-3 worker wages at least equal to the actual or prevailing wage level for the occupational classification at the place of employment, whichever is greater (the “required wage”), as determined at the time of filing the application
- The employer will provide working conditions for the E-3 employee that will not adversely affect the working conditions of workers similarly situated
- There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment
- Notice has been given to the bargaining representative or, if there is no bargaining representative, a notice of the E-3 filing has been posted in at least two conspicuous locations at the place of employment for a period of ten business days
A single LCA may be filed for multiple positions. However, each LCA is limited to only one occupation.
E-3 Visa Application if Outside the United States
After certification of the LCA, if the person is outside the U.S., the E-3 applicant may apply for an E-3 visa directly at an overseas U.S. embassy or consulate.
E-3 Change of Status if Inside the United States
If an E-3 applicant is already in the U.S. in legal status, he/she may seek to change his/her status to E-3 after securing the certified LCA. The prospective E-3 employer files a Form I-129, the certified LCA, all supporting evidence and the appropriate filing fees with the USCIS. An E-3 petition may be filed up to six months prior to the commencement date of the contemplated E-3 employment. Upon approval of the change of status application, the USCIS issues a Form I-797 Notice of Action Approval Notice showing valid E-3 status.
The issuance of a Form I-797 Approval Notice authorizing the change of status to E-3 status also authorizes the individual to commence employment with the employer in accordance with the validity period stated on the Form I-797. However, it does not enable a person to depart and freely re-enter the United States. Under these circumstances, the E-3 employee must apply for an E-3 visas at an overseas U.S. embassy or consulate.
There is numerical cap of 10,500 E-3 visas which may be issued each U.S. government fiscal year.
Time Limits on E-3 Status
E-3 visas are normally issued for a period not to exceed the validity of the LCA, generally less than three years. E-3 status may be extended indefinitely in increments of less than three years.
E-3 Visa holders may either reapply for an E-3 visa at an overseas U.S. embassy or consulate or extend status with the USCIS.
Dependents and Benefits
Spouses and all unmarried children under 21-years old may receive E-3 status even if they are not Australian. The dependents are not required to be Australian citizens.
E-3 spouses are allowed to work in the United States. However, employment authorization is not automatic. An application for employment authorization must be submitted to the USCIS. When approved, the applicant will receive an Employment Authorization Document (EAD). This document is a card authorizing employment for a maximum of two years. An extension of employment authorization may be renewed as long as all the terms of the classification remain the same.