The E-3 is a visa category only for Australians going to the U.S. to work temporarily in a specialty occupation. The legislation passed by the U.S. Congress limited the E-3 to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the U.S. solely to work in a specialty occupation. The spouse and children need not be Australian citizens.
Qualifying for an E-3 Visa
The following are required for an applicant to be eligible for an E-3 visa:
- An E-3 applicant must submit a job offer letter from the prospective United States-based employer. A treaty alien in a specialty occupation must meet the general academic and occupational requirements for the position pursuant to INA 214(i)(1). In addition to the nonimmigrant visa application, the following documentary evidence must be submitted in connection with an application for an E-3 visa:
- A certified Form ETA 9035, clearly annotated as “E-3 – Australia – to be processed.” (Note: DOL is currently updating the Form ETA 9035 to include an option check box for E-3 classification, which will eliminate the need for the interim handwritten annotation).
- Evidence of academic or other qualifying credentials as required under INA 214(i)(1), and a job offer letter or other documentation from the employer establishing that upon entry into the United States the applicant will be engaged in qualifying work in a specialty occupation and that the alien will be paid the actual or prevailing wage referred to in INA 212(t)(1). A certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree could be used to satisfy the “qualifying credentials” requirement. Likewise, a certified copy of a U.S. baccalaureate or higher degree, as required by the specialty occupation, would meet the minimum evidentiary standard.
- 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.
- Evidence establishing that the applicant’s stay in the United States will be temporary.
- 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 alien will be obtaining the required license within a reasonable time after admission.
- Evidence of payment of the Machine Readable Visa (MRV) Fee, also known as the application fee.
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.
In determining whether an occupation qualifies as a “specialty occupation”, follow the definition contained at INA 214 (i)(1) for H-1B non-immigrants and applicable standards and criteria determined by the Department of Homeland Security (DHS) and USCIS.
An E-3 alien must also meet academic and occupational requirements, including licensure where appropriate, for admission into the United States in a specialty occupation. If the job requires licensure or other official permission to perform the specialty occupation, the applicant must submit proof of the requisite license or permission before the E-3 visa may be granted. In certain cases, where such a license or other official permission is not immediately required to perform the duties described in the visa application, the alien must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.
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 Labor Condition Application (LCA), ETA Form 9035, from the Department of Labor.
The validity of the visa should not exceed the validity period of the LCA. The Department of State and DHS have agreed to a 24-month maximum validity period for E-3 visas. This validity may be renewed.
Other than the normal visa application fee, there is no issuance fee.
Annual E-3 Cap
There will be a maximum of 10,500 E-3 visas issued annually. Spouses and children of principal applicants do not count against the numerical limitations.
Nonimmigrant Visa Issues
E-3 status provides for entry on a non-permanent basis into the United States. Similar to E-1 and E-2 visa applicants, the E-3 must satisfy the consular officer that s/he intends to depart upon termination of status.
To demonstrate that an applicant’s family member qualifies for an E-3D (dependent) visa, he/she must demonstrate to the consular officer that the established relationship exists. Usually this can be accomplished with a marriage or birth certificate. You must also show the principle applicant is the recipient of an E-3 visa.
Employment of Dependents
E-3 spouses are entitled to work in the United States and may apply for an Employment Authorization Document (Form I-765) through U.S. Citizenship and Immigration Service (U.SCIS). The spouse of a qualified E nonimmigrant may, upon admission to the United States, apply with the Department of Homeland Security for an employment authorization document, which an employer could use to verify the spouse’s employment eligibility. Such spousal employment may be in a position other than a specialty occupation.