US E3 Visa Information For Australian Nationals

The E3 visa is a US visa classification exclusively for Australian nationals. It was created through the Australia-United States Free Trade Agreement (AUSFTA) by the United States Congress and allows Australians to enter the US to work temporarily within a specialty occupation for a qualifying employer.

In this article, we outline key E3 visa information about the eligibility requirements and application process under this specific US immigration route. 

 

E-3 visa requirements

Australian nationality

To be eligible for the E-3 visa and to apply as the principal visa holder, you must be an Australian national with an Australian passport.

If you hold permanent residence status in Australia but are a citizen of a different country, you would not satisfy the E-3 nationality requirement.

Your dependents (spouse and children under the age of 21) can also apply to join you in the US under the E-3 visa, but they would not need to be Australian nationals.

 

Academic & occupational requirements

Typically, the most complex aspect of the E-3 visa application is evidencing that you meet the academic and occupational criteria.

You must have a bachelor’s degree, or equivalent, as a minimum for entry into your occupation within the US.

If you do not have a bachelor’s degree you may in some circumstances be able to rely on a substantial amount of experience in your professional field in order to make your application. As a general guide, you would need to show at least three years of relevant experience as an equivalent to a year of university study.

Your US-based role must qualify as a specialty occupation. A specialty occupation is one that requires ‘theoretical and practical application of a body of knowledge in the professional field’. This is a broad spectrum, and you will need to ensure that your application and supporting documents evidence that the role qualifies. Examples of jobs that would ordinarily be deemed specialty occupations include software developers, architects, doctors, engineers and scientists.

The most reliable point of reference is the standards for specialty occupations provided for the H-1B route under the Immigration and Nationality Act (INA), 214 (i)(1), as this is also applicable to E-3 visa roles.

If a licence is needed to perform the role in the US but is not available to gain prior to entering the US, you must confirm you will obtain the licence within a reasonable timeframe after entering the US.

The decision as to whether your education and employment credentials meet the eligibility requirements will be at the adjudicator’s discretion, as such your E3 supporting documentation should be thorough and compelling in establishing suitability under the category rules. 

 

E3 visa sponsorship

To gain an E3 visa, you must have a firm job offer from a US employer that is willing to sponsor you.

Your employer is only eligible to be a sponsor if they meet US corporation and immigrant-employment regulations and apply successfully to the Department of Labor (DOL) for a labor condition application (LCA). Through the LCA, US authorities are seeking assurance from the US sponsor that employing the E3 visa holder would not have a negative impact on the wages and working conditions of US workers, and that the role will pay the required minimum salary.

The E3 wage threshold is determined by the position being applied for in the region where you plan to work, as stipulated by the Foreign Labor Certification Data Center.

Only with the LCA can your prospective employer then petition the United States Citizenship and Immigration Services (USCIS) to classify you as a temporary worker within the E-3 visa category.

 

E3 visa application process

You can apply for the E3 visa either as a change of status application made from within the US or by filing your petition from overseas through a US embassy or consulate. 

 

Applying from within the USA

If you are applying within the US, you should file Form I-129, Petition for Nonimmigrant Worker. 

You will also need to compile and submit a number of documents with your application:

• A Labor Condition Application (LCA)
• Academic or other credentials that prove you qualify for the position you have been offered
• Job offer letter or other evidence from your employer that you will be working in a specialty occupation at the required salary
• Details of required licences if relevant to your occupation

 

Applying from outside the USA

If you apply from outside of the US, you will need to use Form I-129 and submit all the documents as listed above. If it is approved, a Form I-797, Notice of Action/Approval will be sent to your prospective employer who will send it on to you. 

The Form I-797 approval notice is not a visa. You will need to use this form to apply for your E3 visa at a US embassy or consulate, generally in the country where you reside, for permission to travel to the US. 

You will then need to schedule and attend an interview at the US Consular post where you filed your petition. 

Before the interview you should compile the necessary documents to evidence your eligibility. You should refer to these in your visa interview as evidence for the adjudicator. The specific documents to take will depend on your background, circumstances and the role, which could include: 

• Your job offer letter or similar
• DS-160 confirmation page
• Appointment confirmation page
• Passport or other relevant travel documents
• The original receipt from Australia Post for your application fee payment
• Pre-paid self-addressed envelope (registered post) 
• Two passport-sized photos for each visa
• Evidence of your history of visits or non-visits to the USA and any immediate family connections to the US
• Proof of your academic or other relevant qualifying credentials 
• Evidence that you intend to leave the US by the end of your visa period, such as evidence of family, real estate or financial ties in your country of residence

 

E3 dependents

If you have a spouse and children under the age of 21, they will also be eligible to apply to join you in the US. Your dependent family members do not have to be Australian nationals.

Spouses are also eligible to work without restriction in the US, but your children are not. Your spouse would need to make a work authorization application using Form I-765, Application for Employment Authorization.

 

Extending the E3 visa

The E3 visa is usually initially granted for a period of two years, although the specific period will be determined by the LCA validity, which can in some cases be for a shorter term.

As an E3 visa holder, you can apply to extend your status for a further two years, provided you are still eligible.

There is also no restriction on the number of times you can extend your visa, provided you make the extension applications on time and you continue to meet the visa requirements.

You should start your renewal process with your employer around five months before your visa expires.

There are two routes to extend your E3 status; you can either leave the US and apply for a new E3 visa at a US Embassy or Consulate overseas, or you can remain in the US and your employer files a petition with USCIS to extend your E3 status. To avoid issues or breaks in lawful status, the employer will need to ensure the E3 worker continues to meet the visa requirements before filing the petition to extend E3 status.

Since February 2021, employers have been able to request premium processing service when submitting the E3 employee’s extension of status petition.

If the extension petition is filed ahead of visa expiry, you will be allowed to remain in the US to continue your permitted work activities for a period of up to 240 days beyond the date of the expiration of the authorized period of stay or until USCIS makes a decision on your extension petition.

 

Changing your employer

If you have gained entry to the US on an E3 visa, you can move to a different employer within the country but you would need to make a new application for your new status. Your options are to either leave the US and apply for a new E3 visa from overseas, or your new employer has to file a new Labor Condition Application to become your sponsor.

In light of ongoing service delays and travel restrictions due to COVID, take advice on your circumstances to understand which route would be appropriate for you to change your E-3 employer.

 

Can you apply for a Green Card from the E-3 visa?

One of the limitations of the E-3 visa is that it does not offer a direct path to US permanent residence or a Green Card. The E-3 visa is temporary and holders are required to leave the country once they no longer meet the visa conditions, such as ending E-3 employment with your sponsor.

To remain in the US on a permanent basis, you would need to consider alternative immigration options. For example, if you are married to a US citizen, you could be eligible for a Green Card by marriage. 

 

Need assistance?

The key to ensuring a successful application is careful planning and ensuring you and your prospective employer complete all the stages of the process in sufficient detail and with the relevant evidence.

NNU Immigration are specialists in US work visas, including the E3 visa applications. We can also help where you are starting a new job in the US with a new employer, as a new LCA and E3 visa will be needed. Contact us for professional support with your E3 visa application.

This article does not constitute direct legal advice and is for informational purposes only.