By Daniela A. Hoegerle

What is E-3?

E-3 visas, or Specialty Occupation Professionals from Australia visas, are for Australian nationals who wish to enter the United States as a nonimmigrant for temporary employment. The visa was created by an Act of the U.S. Congress as a result of the Australia-United States Free Trade Agreement (AUSFTA), although it is not formally a part of the AUSFTA. The E-3 visa classification is limited to 10,500 Australian nationals. The E-3 visa holder has an initial period of stay of two (2) years. However, the visa holder may request an extension of stay of up to two (2) years per extension.

How do you qualify?

To qualify for the E-3 visa, the applicant must:

• Be an Australian national;
• Have a legitimate offer of employment in the U.S.;
• Possess necessary academic or other qualifying credentials; and
• Intend to fill a position that qualifies as a specialty occupation.

The term “specialty occupation” can be defined as “theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” Although there is no definitive list of occupations eligible for the E-3 visa, a useful general guide for applicants to check if their occupation might be considered a graduate specialty profession and thus might be eligible for an E-3 visa, is the Occupational Information Network website O*NET Online. It is not enough that an E-3 applicant holds a particular degree; the job itself must also require a bachelor-level or higher qualification. If the applicant is applying based on work experience, then he or she must show a certain number of years of professional experience.

What are your options to apply?

The E-3 applicant will need to submit the following supporting documents:

• Labor Condition Application (LCA) from the Department of Labor (DOL) that indicates it has been filed to support an E-3 classification;
• Academic or other credentials demonstrating qualifications for the position;
• Job offer letter or other documentation from the employer establishing the applicant will be engaged in a specialty occupation and that the applicant will be paid the higher of the actual or prevailing wage; and
• If required, before the applicant may commence employment in the specialty occupation, he or she must have the necessary license or other official permission to practice in the specialty occupation.

If the E-3 applicant is changing employers while remaining in the U.S., then his or her new employer must obtain a certified LCA for the position in which he or she will be employed and properly file a Form I-129 petition. The Form I-129 petition must be approved before the applicant is authorized to work for the new employer. USCIS will send approval notice with a new I-94 showing the change of employer and period of authorized stay. The new I-94 document will allow the applicant to continue living and working in the U.S. during the authorized period. 

If the applicant in the U.S. needs to travel after obtaining an approval from USCIS or an applicant is applying from outside the U.S., the E-3 applicant must also complete and submit the online nonimmigrant visa application, Form DS-160, with a photograph. Next, generally, the applicant will need to schedule a visa interview at the U.S. Consulate in Australia. Applicants may also be able to apply as a Third Country National (TCN) outside of Australia. To prepare for the visa interview, the applicant must pay the non-refundable visa application fee and will need to gather the following required documentation:

• Passport valid for travel to the United States, preferably valid for at least six (6) months beyond the applicant's period of stay in the United States;
• Nonimmigrant visa application, Form DS-160 confirmation page;
• Application fee payment receipt;
• Passport-style photograph;
• LCA from DOL;
• Evidence of academic or other qualifying credentials;
• Job offer letter from the employer;
• In the absence of academic or other qualifying credentials, evidence of education and experience that is equivalent to the required United States degree; and
• A certified copy of any required license or other official permission to practice the occupation in the state of intended employment if so required or, where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that the required license will be obtained within a reasonable time after admission.

Once the visa interview is complete and the visa is approved, the visa holder will be allowed to travel to the U.S. and request permission to enter the country. Once admitted the visa holder must depart the country on or before the date indicated on his or her admission stamp or paper Form I-94, unless his or her request to extend his or her stay is approved by USCIS. 

What options do your family members have?

If the visa holder's spouse, partner, and/or children under twenty-one (21) years of age wish to accompany or join the visa holder for the duration of his or her stay, they may be eligible to apply for derivative visas. The spouse and children need not be Australian citizens. To obtain a derivative E-3 visa, the family members must attend an interview at a U.S. Consulate abroad along with proof of the main applicant's E-3 visa and proof of their relationship (i.e. marriage certificate or birth certificate for children). 

If they wish to visit for vacations only, they may apply for visitor B-2 visas, or if qualified, travel visa free under the Visa Waiver Program (VWP). Common-law spouses and partners may be eligible to apply for B-2 visas. 

Children of E-3 workers may not be employed in the U.S. However, spouses of E-3 workers in valid E-3 or E-3S status are considered employment authorized incident to status. This means the spouse can be employed anywhere in the U.S. as long as they have a valid, unexpired I-94. An Employment Authorization Document (EAD) is not necessary but may be obtained if desired. To apply, the dependent spouse must file Form I-765, Application for Employment Authorization, with the Service Center that has jurisdiction over the dependent spouse's place of residence. DHS-issued evidence of such employment authorization, particularly that may be presented to employers for completion of Form I-9, Employment Eligibility Verification, includes:

• An unexpired Form I-94 with a notation reflecting E-3S nonimmigrant status;
• An unexpired Form I-94 with a notation reflecting E-3, E-3D, or E-3R nonimmigrant status, presented together with a notice from USCIS regarding the new admission code;
• An unexpired Employment Authorization Document (EAD); and
• An unexpired EAD with additional documentation to show the EAD is automatically extended.

Contact the Law Offices of James D. Eiss today to learn about the E-3 Specialty Occupation Workers from Australia category.