Alternatives to H-1B: E-3 Visa -- Australians in Specialty Occupations

In May 2005, the United States created a new non-immigrant visa category available only to Australian citizens (as well as their spouses and children). Known as E-3, it allows Australian Nationals to accept employment in "specialty occupations" in the US.

Note: The U.S. State Department (DOS) warns people not to confuse the E-3 nonimmigrant visa category with the Employment-Based Third Preference Immigrant category, often abbreviated as an EB-3.

Qualifications for an E-3 Visa:

To qualify for an E-3 visa you must demonstrate that:

• You have an offer of employment in the U.S.
• You are an Australian citizen
• You have the necessary academic or other qualifying credentials
• Your stay will be temporary
• The position you are coming to fill qualifies as "specialty occupation" employment

Person in Specialty Occupation:

• The term "specialty occupation" for Australian E-3 Visas uses the same definition as for persons holding an H-1B Visa.

• The Immigration and Nationality Act defines "specialty occupation" to be an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, the attainment of which usually requires a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation
Annual Quota for E-3 Visa:

Under the law there will be a maximum of 10,500 E-3 visas issued annually during each fiscal year (October 1st to September 30). This numerical limitation applies only to the principal E-3 Visa Holders and not their dependents (E-3D).

E-3 as an Alternative to H-1B for Employers

Because the standards for the job offer in the US are the same as for H-1B visas, the E-3 visa provides Australian nationals a way around the H-1B cap, freeing up numbers that otherwise would be used by Australian nationals.

Application Process for an E-3 Visa:

Generally you must make your initial application for an E-3 visa at a US consulate outside the US, usually at a consulate in Australia. Previous approval from the USCIS is not required.

• You may make your appointment for a visa interview at a US Consulate abroad as soon as you have prepared and/or gathered all the necessary forms and supporting documentation. Since this is the new visa category, and it is not oversubscribed, it is generally assumed that your E-3 Visa can be obtained within a week of your interview at the US Consulate.

• If you are already within the U.S, a petition for a change of status may be filed with the USCIS to change status to E-3 visa status. Alternatively, you may depart the US and apply for an E-3 visa at a US consulate abroad.

• Applying for the change of status takes 1-2 months whereas applying for an E-3 from the US Consulate genearlly takes only a week. Thus it is usually faster to apply for your E-3 Visa at the US Consulate abroad than applying for a Change of Status in the US.
You can travel to the US on the Visa Waiver Program to find a job or attend interviews but you cannot apply for change of status to E-3 visa on a VWP:

You may only enter the United States under the Visa Waiver Program (VWP) for short trips (maximum of 90 days) for business or pleasure. If you have entered the US on the Visa Waiver Program, you may not work in the US. You also may not change your status within the US to E-3 under the Visa Waiver Program.

Change of Status to E-3:

If you are already in the US in another visa status (i.e., not on the VWP), your employer may request a change of status to E-3, or extend your existing E-3 status, by filing a Form I-129 (Petition for a Nonimmigrant Worker) with the USCIS Vermont Service Center.

Dual Intent:

The E-3 visa is a nonimmigrant visa so your stay in the US would be temporary. You have to prove that you do not intend to immigrate to the United States. Under the current E-3 regulations, an alien classified as an E-3 nonimmigrant must have an intent to depart the US upon the expiration of his or her E-3 status.

Duration and Extension of your Stay on an E-3:

• E-3 Specialty Occupation Workers may be admitted initially for a period not to exceed the validity period of the accompanying E-3 labor condition application (i.e., for a maximum of two years).

• If you wish to extend your E-3 stay in the US in a specialty occupation that requires a license or other official permission to practice in the specialty occupation, you must submit a copy of the license or proof of other official permission to practice the occupation in the jurisdiction of intended employment, with your extension application.

• There is no limit on the total length of time an Australian citizen may stay in the US in E-3 status. Consequently, there is no specified number of extensions a qualifying E-3 worker may be granted. Your E-3 visa status can be renewed indefinitely.

Spouses / Children of E-3 Visa Holders: May spouses work?

• The spouse and children (unmarried and under the age of 21) of an E-3 visa nonimmigrant may accompany the principal to the US. Additionally, your spouse and children do not need to be Australian nationals. It is only the principal applicant who must meet the Australian citizenship requirement.

• The spouse is eligible to apply for work authorization. This is a significant benefit not available to most non-immigrants, and/or dependent spouses, and is one of the greatest advantages of E-3 visa over the H-1B visa (the dependent H-4 spouse cannot obtain permission to work while in H-4 status).

• The work performed by the spouse of an E-3 does not have to meet any particular requirements. Additionally, as noted above, the spouse and children are not counted against the 10,500 annual limit.
Examples

Let's now take a look at some specific examples of how the E-3 visa can be used to benefit Australian citizens. The first and most obvious use is for the Australian professional that wants to come to work in the US. Because they qualify for the E-3 visa they do not have to worry about the H-1B cap and having to file "at the right time" and/or worry about getting selected in the H-1B lottery.

Another person who can benefit from the E-3 visa is a Medical Doctors who are in the US in J-1 visa status. Because they have received graduate medical training in the US under the J-1 visa they are not able to qualify for H-1B status or Permanent Residence until they receive a wiaver of the J-1 two year home residency requirement. However, there is no prohibition from that individual obtaining E-3 status while they work on getting a waiver and pursuing their permanent residence in the US.

These are just a couple of examples of the benefits under the E-3 visa. There are many more possibilities out there.

Conclusion

The E-3 Visa has many advantages over other classifications of work visas. The issuance of E-3 visas will benefit Australian nationals and their prospective employers who are subject to the H-1B cap. The E-3 is preferable over H-1B because you do not need a petition approved by the USCIS prior to applying for an E-3 visa stamp at a US consulate. This step alone saves a substantial amount of time and filing fees.

The E-3 visa has the added benefit of not being counted against the H-1B cap - often met at or before the start of the USCIS fiscal year. However you must take care in preparing your E-3 visa application to assure the greatest chance for success.

Click Here to know more about the E-3 Visa - an alternative to H-1B.

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The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you Consult with the experienced Immigration Attorneys