E-3 Visas For Australian Nationals Can Help U.S.-Based Employers Shore Up Their Skilled Workforce – Work Visas

As U.S. companies in the science, technology, engineering, and
mathematics (STEM) fields would agree, the H-1B visa program has
numerous benefits. These companies rely on H-1B visa employees to
fill their needs for skilled talent as they often fit well with an
organization’s structure and objectives. However, businesses
may need to resort to a ‘Plan B’ if their respective H-1B
cap registrations are not selected during the annual H-1B cap
lottery. Thankfully, they have the E-3 visa option at their
disposal.

The E-3 visa is only available for Australian nationals with
specialized knowledge and who have earned at least a bachelor’s
degree (or equivalent) in a related field. In contrast to other
visa types, E-3 visas can be renewed indefinitely in two-year
increments if the requisite criteria are satisfied. If an E-3 visa
applicant is within the U.S. at the time of filing, the filing fee
is only $460.00.¹ Further, the spouse of an E-3 visa
holder can work in the U.S. without needing to apply for a separate
employment authorization document (EAD) card; spouses are regarded
as “employment authorized incident to
status.” While an E-3 visa petition is not subject to a
lottery selection process, the federal government allocates up to
10,500 E-3 visas each fiscal year. This cap is typically not
reached since Australians only use approximately 5,000 E-3 visas per fiscal
year.

Unlike H-1B and L-1 visas, the E-3 visa does not signify dual intent. H-1B
and L-1 visa holders can declare to the U.S. government that they
wish to remain permanently in the U.S. Their respective employers
can then file an immigrant-based petition and ultimately obtain an
approval for permanent residence (green card). In contrast, E-3
visa holders cannot have dual intent and thus, they declare that
their authorized stay is temporary in nature. Nonetheless,, an E-3
visa application cannot be denied solely due to an
individual who has begun the green card application process. The
government is essentially implying that E-3 visa holders are
discouraged from applying for lawful permanent residency, but such
applications will not cancel their current E-3 status.

The E-3 visa came into existence through section 501 of P.L.
109-13, the Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, in
2005. This Act was a result of the Australian – United States
Free Trade Agreement (AUSFTA). The visa was created by Congress and
was not officially part of

AUSFTA. Still, it is likely that the visa arose from the trade
negotiations between the U.S. and Australia that led to AUSFTA.
While the visa is in the E category (the E-1 and E-2 visas are
often referred to as “treaty trader” and “treaty
investor” visas), some of its principal specifications are
more like employment-based visas as defined under the Immigration
and Nationality Act (INA). For example, E-3 visa applications must
undergo the labor attestation process and the proffered position
must constitute a “specialty occupation.”²

A successful E-3 visa applicant must be an
Australian national; lawful permanent residents of Australia do not
qualify. The applicant’s spouse and children, however, do not
need to be Australian nationals. Further, the applicant must have a
legitimate offer of employment in the U.S. and have the
prerequisite academic or other qualifying merits. If the Visa
Waiver Program (VWP) criteria are satisfied, the applicant may
travel to the U.S.
through the VWP program to find or attend interviews. If the
applicant does not satisfy VWP requirements, then he or she may be
able to travel to the U.S. on a B-1 or B-2 visitor visa. Though,
extension filings can take place while the applicant resides in the
U.S., the applicant must be outside of the U.S. at the time of the
initial visa filing.

The E-3 visa application process begins when the sponsoring
employer submits a Labor Condition Application (LCA) with the U.S.
Department of Labor. The LCA confirms that the sponsoring employer
will pay at least the required wage level (i.e., prevailing wage)
for the proffered position. Once the certified LCA is issued, the
applicant must complete Form DS-160 on-line, arrange for a visa
interview at a U.S. consulate or embassy while outside of the U.S.
Before the interview, the applicant or sponsoring employer must
submit the required documents supporting the application to the
Department of State (such as a valid Australian passport, job offer
letter, job/project descriptions, evidence of available work (e.g.,
contract agreement such as a Statement of Work), and college degree
certificates/transcripts). The applicant also needs to print and
bring the final DS-160 confirmation page to the visa interview. If
the applicant has a degree from a non-Australian or non-American
institution of higher education, then it will be important to
obtain an evaluation from a credentialing service that shows how
the obtained degree is equivalent to a relevant U.S. bachelor’s
degree or higher. If the applicant did not attend college, then she
or he must provide evidence revealing how accumulated work
experience is equivalent to a relevant U.S. bachelor’s
degree.

During the E-3 visa interview, the applicant will answer
questions concerning the visa criteria. The interviewer will likely
ask questions relating to personal and professional background
details, the proffered position and corresponding project(s), and
prior work and travel in the U.S. It will be essential to bring all
the above-mentioned supporting documents to the interview. In the
event that the immigration officer does not issue an approval at
the end of the interview, the applicant may need to provide
additional documentation.

In the event of an E-3 extension, change of employer, or change
of status., the petition will be filed with the United States
Citizenship and Immigration Services (USCIS). A change of status
occurs when an individual with prior authorized stay in the U.S.
under a different visa category such as H-1B, L-1, or F-1, seeks to
change visa status. Under these circumstances, a Form I-129,
Petition for a Non-Immigrant Worker must be submitted to the USCIS
along with similar supporting documents, the filing fee, as well as
other fees that may be required by the US government for the new
visa status (including an American Competitiveness and Workforce
Improvement Act (ACWIA) fee and a Fraud Prevention and Detection
Fee.³ A premium processing request can be included along
with Form I-129. With premium processing, the E-3 visa application
receives a decision within 15 calendar days upon filing. The filing
fee check for premium processing is currently $2,500.00.

We encourage companies to contact an immigration law firm if
they wish to learn more about the E-3 visa application process for
Australian nationals. An immigration attorney can provide
elaboration and customized guidance.

Footnotes

1. On January 4, 2023, the USCIS issued a Notice of
Proposed Rule Making (NPRM) that would adjust filing fee
requirements for many immigrant and non-immigrant case types,
including the E-3 visa. The proposed change would increase the
filing fee for E visas from $460 USD to $1,015 USD. In addition,
the USCIS also proposes to charge $600 for each employment-based
petition to cover the costs of processing asylum cases. USCIS also
proposes to increase the proposed H-1B pre-registration fee from
$10 to $215. The complete text of this NPRM can be found in the
Federal Register, Vol. 88, No. 2, January 4, 2023:
https://www.federalregister.gov/documents/2023/01/04/2022-27066/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration.
The USCIS will accept comments on this NPRM until March 3, 2023.
After that date, the USCIS will review comments and then presumably
make a decision and issue a final, new fee schedule. Petitioners
and legal representatives should monitor USCIS announcements for
updates.

2. A
specialty occupation is defined as a position that requires a
theoretical and practical application of a certain specialized
knowledge and the attainment of a U.S. bachelor’s degree (or
its equivalent) or a higher degree in the specific specialty. Such
a degree must be a prerequisite for entry into the position.
Employers can refer to the Occupational Information Network website to
determine whether a given position is considered a specialty
profession.

3. A list of all I-129 fees, as of this writing, can be
found at https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.