The E-3 visa program was launched in 2005 to allow Australian professionals access to opportunities created by the Australia-United States Free Trade Agreement (AUSFTA). The E-3 is similar to the H-1B visa, but solely reserved for Australian professionals. Both are nonimmigrant visas, which means they are temporary in nature. However, there is another stark difference; whereas an H-1B is a dual intent visa, an E3 is not. A dual intent visa allows you to be present in the U.S. temporarily, but with the option of applying for a green card in the future. If you are looking to move to the U.S. permanently, there is no path to do so under the E-3 visa category. With E-3 status, you must be planning to leave the United States upon expiration of your nonimmigrant work visa.

How do I qualify for the E-3?

To qualify for an E-3 visa, you must be an Australian citizen. In addition, you must have a job offer in the United States that requires at least a bachelor’s degree and other specialty skills. Finally, you must actually possess the requisite qualifications and academic degrees to fill the job.

What jobs qualify as a specialty occupation?

The E-3 is only available if you will be working in the United States in a specialty occupation for which you are qualified. A specialty occupation requires a bachelor’s degree or higher for entry into the profession and application of a specialized body of knowledge.

Your qualifications must match these criteria. For example, if the profession requires an engineering degree and license, you must have both. If the job requires a juris doctor or higher degree, you must have attained that higher degree.

How do I apply?

First, you have to have a job offer from an employer in the U.S. Then, follow these steps (if outside the U.S.):

1. Your employer must file a “Labor Condition Application” with the Department of Labor. This can be completed online at no cost to your employer. Unlike the H-1B visa, your employer does not have to file a petition with the Department of Homeland Security.
2. Then you wait for your LCA to be approved. An approved Labor Condition Application verifies that your wages, benefits and working conditions are the same as other similar jobs within the geographic area;
3. You now file Form DS-160 online and pay a fee. This allows you to schedule an interview at a U.S. embassy or consulate in Australia. Keep in mind that only select consulates in Australia process non-immigrant visas like the E-3. If this is your first time applying for an E-3 visa, it is usually recommended that you go to a consulate in Australia.
4. Attend the interview. The consular officer will typically tell you on the spot if you have been approved or not. If approved, your passport will be returned to you with a visa stamp.

If you are already in the U.S. and applying for a change in status, your employer needs to file form I-129 with U.S. Citizenship and Immigration Services (USCIS), as well as the Labor Condition Application described above. Once your form I-129 is approved, you will receive an approval notice from the USCIS, known as the I-797, Notice of Action/Approval. Now, you may apply for your visa at a U.S. embassy or consulate using form DS-160 (same as above). While it is recommended to go to the U.S. consulate in your home country, folks already in the U.S. sometimes choose to do this part in Canada or Mexico.

What documents should I take to the interview?

E-3 visa applicants are required to bring the following to their consulate interviews:

• A current, valid passport
• The approved LCA filed by your employer
• A copy of your degree, and proof of equivalency if obtained outside the United States;
• Proof that you meet all other qualifications for the job, such as licenses and experience;
• Your U.S. employer’s letter offering you the job at or above the prevailing wage;
• Printed DS-160 confirmation – after completing form DS-160 online, a confirmation screen appears. Be sure to print this out – it will have a barcode and a photo of you (which you upload when filling out the form)
• Printed receipt of all application fees
• Supporting documents that show you have strong ties to Australia – bank account statements, property, driver’s license, etc.
• If you are already working in the USA and perhaps switching from one E-3 position to another, take your most recent tax return and pay stubs. While it is not mentioned in any required documentation, it has come to our attention that this has been asked (not often) occasionally of applicants.
• Extra passport photos – it’s always a good idea to take 1-2 extra photos to an interview (even if you uploaded one online)

Can my family join me in the United States?

You can include your spouse and unmarried children under the age of 21 as dependents on your application. Your dependents do not have to be Australian nationals. They can apply for an Employment Authorization Document (EAD) by filing form I-765, which allows them free range to work for any employer while under the E-3 dependent status (E-3D).

Is there a cap on number of visa applications?

The E-3 visa is subject to an annual cap of 10,500, which includes only primary applicants, not dependents. However, the number of applications approved each year is generally just 3,000 to 4,000, demonstrating another significant advantage over the H-1Bs in which the cap is hit very soon after filing opens for the year.

How long is an E-3 Visa Valid?

The E-3 visa has a maximum period of 24 months, but the visa can potentially be extended indefinitely. Nonetheless, you should be prepared to prove your ties to Australia at all times. An intention to remain permanently in the United States may be grounds for denial. Ties to Australia may include a home, a return airline ticket, family connections or future job opportunities. You should also be unambiguous in your language if asked about your intentions to depart the United States upon expiration of your E-3 visa.

The E-3 visa process can be overwhelming. If your prospective employer has limited experience hiring foreign nationals, it is best to consult an immigration attorney before getting started. Connect with one of Ask Ellis’ trusted immigration attorneys today!

*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.