E3 Visa (Australian Specialty Workers)

The E3 visa is a nonimmigrant (temporary) visa for Australian citizens (or nationals) who will be working in a professional specialty occupation that requires at least a bachelor’s degree in that specialty. The annual quota for the E3 visas is 10,500 visas each year (rarely reached).

E3 VISA QUALIFIED PERSONS

A qualified person under the E3 visa petition must be a member of a profession and have (1) Australian nationality, (2) a job offer from a U.S. employer for a job position that is in a specialty occupation, (2a) at least a bachelor’s degree (or its foreign equivalent) in a specific specialty or in a related field, or (2b) have a combination of educational degrees, training, experience that is equivalent to having the required degree, and (4) any state licenses if required for practice under state law.

J1 visas holders subject to the 2-year foreign residence requirement can be eligible for the E3 visa status.

Substitutions of Degree

E3 visa job positions are in professional occupations that require workers to have at least a bachelor’s degree. The E3 visa worker is allowed to substitute degrees required by the job position with certain combinations of formal education, training, and work experiences.

Bachelor's Degree Substitution

E3 visa workers without a bachelor’s degree are allowed to substitute the required bachelor’s degree with specialized training and/or work experience. The E3 visa worker can use 3 years of specialized training and/or work experience to make up for each year (1 year) of college-level education that they are missing.

Master's Degree Substitution

E3 visa workers without a master’s degree are allowed to substitute the required master’s degree with a bachelor’s degree and at least 5 years of experience in the specialty.

Ph.D. Degree Cannot Be Substituted

E3 visa workers without a doctorate (Ph.D.) are not allowed to substitute the required doctorate degree which means that the E3 visa worker must have a doctorate degree (or its foreign equivalent) if the E3 visa job position requires for it.

Generalized Degrees

For E3 visa workers with generalized degrees (e.g., business administration, liberal arts), the classes that the person took during their study can be used to show that they are qualified for specific job positions. For example, an E3 visa worker with a business administration degree can show that they qualify for an accounting job position with the number of relevant accounting classes they took while obtaining their degree.

Temporary Licenses

If the E3 visa worker only holds a temporary license, the E3 visa can only be approved for a period of up to 1 year or the period that the temporary license is valid (whichever is longer) unless (1) the E3 visa worker is allowed to perform their job duties without a permanent license under supervision or (2) the state law allows a person without a license to practice the occupation under supervision even if the occupation usually requires a license. For example, medical students in medical residency programs (e.g., resident physician) can qualify for the E3 visa even if they do not have a full and unrestricted U.S. medical license yet.

Medical Nurses

In general, most registered nurses (RN) do not qualify for an E3 visa because no state in the United States requires a bachelor’s degree in a nursing license. However, advanced practice registered nurses (APRN) may be able to qualify for an E3 visa because of the advanced level of education and training required for their certification.

Possible APRNs can include but is not limited to:

Certified nurse-midwife (CNM)
Certified nurse practitioner (CNP)
Certified clinical nurse specialist (CNS)
Certified registered nurse anesthetist (CRNA)

Nurses under the E3 visa must also be certified by the Commission on Graduates of Foreign Nursing Schools (CGFN) or an equivalent agency.

E3 VISA QUALIFIED JOB POSITIONS (SPECIALTY OCCUPATION)

A qualified E3 visa job position must be in a specialty occupation which requires (1) theoretical and practical application of a body of highly specialized knowledge, and (2) at least a bachelor’s degree (or its equivalent) in the specific specialty field to enter that occupation in the United States.

Required Degree in Specific Specialty

The required degree must be in a specialty field that is related to the E3 visa job position which means that the classes completed for the degree should have provided the person with the knowledge and skills that are necessary to perform the specific job position. For example, a public relations job position that accepts workers with a degree in a general field (e.g., business administration) or degrees in a variety of fields (e.g., marketing or advertisement major) will more likely face challenges than a software engineer position that accepts workers with a computer science degree due to the public relations job position not requiring a degree in a specific field.

Qualified Specialty Occupation

The qualified specialty occupation under the E3 visa must also satisfy at least 1 of the 4 requirements: (1) a bachelor’s degree or a higher degree (or its equivalent) is normally the minimum requirement for the job position, (2) the degree requirement is common for similar employers in the industry or alternatively the job position is so complex or unique that it can only be done by a person with a degree, (3) the employer normally requires a degree (or its equivalent) for the job position, or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the job duties is usually associated with having a bachelor’s degree or a higher degree.

Degree is Normally a Minimum Requirement for Job Position

The E3 visa job position should normally require at least a bachelor’s degree in a specific specialty related to the job duties that the worker would need to perform. The specific field of study should be directly related to the job duties of the E3 visa job position. Thus, job positions that accept a generalized degree (e.g., business administration without a concentration) or degrees from a variety of specialty fields may face issues under the E3 visa.

Specialty Occupation Factors

The factors of whether the job position is qualified as a specialty occupation under the E3 visa can include but are not limited to:

Job title
Job duties (this will be the focus)
The E3 visa worker’s education and work experience
The nature of the U.S. employer’s business operations (e.g., size of business, the industry it is in)
Salary that is offered to the E3 visa worker and what is common in the industry
Common industry practices

Degree is Normally Required in Industry or Job Duties are Specialized and Complex

The degree requirement for the E3 visa job position should be considered common practice with other similar employers in the same industry. The U.S. sponsoring employer under the E3 visa should be compared to other employers in the industry that are similar in size, level of revenue, or the number of employees.

Employer Normally Requires the Degree

The E3 visa job position can also qualify as a specialty occupation if (1) the U.S. sponsoring employer usually required that degree in the past, (2) the E3 visa job position itself requires the degree, and (3) theoretical and practical application of a body of highly specialized knowledge is required to perform the job duties.

The U.S. sponsoring employer’s past employment (hiring and recruitment) practices for the E3 visa job position (or similarly situated employees) will be looked at and the educational background, work experiences, and job duties of the past employees that held the E3 visa job position will be reviewed. For example, if a previous employee who held the proposed E3 visa job position did not have a bachelor’s degree, it would unlikely for this job position to qualify under the E3 visa.

Full-Time Job & Part-Time Job

The E3 visa can be for full-time jobs and part-time jobs, however, the E3 visa worker will have to show that they will not become a public charge with their income (or financial assets).

E3 VISA PERIOD OF STAY & EXTENSION (RENEWAL)

The initial E3 visa grants a period of stay up to 2 years and the renewals (extensions of stay) are granted for up to 2 years each time. There is no maximum limit on how many times the E3 visa can be renewed and timely filed E3 visa extensions allow the E3 vis worker to continue working for an additional 240 days while the E3 visa extension petition is pending.

E3 visa workers (returning E3 principals, E3R) who are extending their E3 visas and are issued new visas to continue employment with the original U.S. sponsoring employer are exempt from the annual quota limit for E3 visas (i.e., 10,500 visas each year).

E3 Visa Grace Period (Additional Periods of Authorized Stay)

The E3 visa worker is allowed to enter the United States 10 days before the start date and stay an additional 10 days after the end date (which should be included on the Arrival/Departure Records Form I-94). However, the E3 visa worker cannot work in those additional 20 days.

There is also a 60-day grace period of authorized stay in the United States (or till the expiration date of the E3 visa whichever is shorter) if the E3 visa worker’s employment is terminated before the E3 visa end date.

E3 VISA REQUIREMENTS & DOCUMENTS

The E3 visa for the professionals in specialty occupations have four main requirements that need to be satisfied: evidence must be provided to the USCIS or DOS to show that (1) the E3 visa worker has Australian nationality, (2) the job position offered under the E3 visa petition qualifies under the definition of a specialty occupation which is a professional job position that requires at least a bachelor’s degree (or its equivalent) to conduct theoretical and practical application of a body of highly specialized knowledge, (3) the E3 visa worker has the qualifications to work in that job position (which typically means that the E3 visa worker has a bachelor’s degree in that specific field or has the equivalent work experience), and (4) the U.S. sponsoring employer has the business need and ability for such an E3 visa worker.

Documents Required for the E3 Visa (Specialty Occupation)

The evidence provided to the USCIS or DOS for the E3 visa (Specialty Occupation) must show:

E3 visas can only be issued to persons who are a citizen or national of Australia.

Evidence that shows the E3 visa worker is a citizen or national of Australia can include but is not limited to:

Australian passport (it should include biographical pages, related visa pages and stamps that show U.S. admission)
Arrival-Departure Record (Form I-94)

Evidence that shows the E3 visa job position is under the definition of a specialty occupation can include but is not limited to:

Documents from authoritative career resources (e.g., DOL’s Occupational Outlook Handbook) that shows the job duties, education, training, skills, work environment, and other qualification requirements for the specialty occupation (which should include descriptions on how the E3 visa job position offered is related to the occupation and how the degree requirement is needed for the E3 visa job position)

Job postings or job advertisements that show the degree requirement of at least a bachelor’s degree (or its equivalent) is common to comparable job positions in similar organizations within the industry

Letters or affidavits from the organizations or persons within the industry attesting that similar organizations routinely recruit and employ persons that have at least a bachelor’s degree (or its equivalent) in the specific specialty for those type of job positions. It should include:

o The writer’s qualifications as an expert

o How the writer reached the conclusion

o The basis used for the conclusion (e.g., copies or citations of the articles used)

Explanation of the specific job duties related to the products and services, and how they are so complex and specialized that the knowledge required to perform them is usually by attainment of at least a bachelor’s degree (or its equivalent) in a specific field of study
Trade publications or other articles that show the nature of the U.S. sponsoring employer’s products and services and that the specific E3 visa job duties are so complex and specialized that at least a bachelor’s degree (or its equivalent) in a specific field of study is required for the job position offered
Organizational chart or diagram (which must include the hierarchy structure, staffing levels, education levels, field of study, and experience requirements for the job position)
Current and past job postings or announcements for the proffered job position (or end-clients that the E3 visa worker will work for) requires applicants to have at least a bachelor’s degree (or its equivalent)
Past employment practices for the job position:

o Documents that show the number of employees hired for the job position in the past 2 years

o Employment or pay records that show current or past employee in the job position

o Degrees or transcripts that show the field of study and level of education of each employee hired for the job position in the past 2 years

o Job duties, position descriptions, job postings, job offer letters, performance

Evidence that shows the E3 visa worker has the required qualifications of the E3 visa job position can include but is not limited to:

Diplomas, degrees, certificates, licenses, professional organizational memberships
Foreign academic evaluation (if academic records are not from U.S. educational institutions)
Letters from former employers to verify past work experience
Business records (e.g., contracts, invoices, proof of payment, letters from current or former clients) to show past work experience if self-employed

An E3 visa petition cannot be filed without a U.S. employer sponsoring it (which means that foreign workers cannot apply for an E3 visa by themselves). A U.S. employer can include persons (e.g., agents), corporations, partnerships, sole proprietorships, or other organizations or associations in the United States with a tax identification number (Federal Employer Identification Number, FEIN) assigned by the International Revenue Service (IRS). The documents that show the U.S. sponsoring employer has the ability to pay the wage offered to the E3 visa worker is typically provided if requested in a Request for Evidence (RFE) and not in the initial filing.

The documents that show the U.S. sponsoring employer has the ability to pay the wage offered to the E3 visa worker is typically provided if requested in a Request for Evidence (RFE) and not in the initial filing.

Evidence that the U.S. sponsoring employer has the ability to pay the wage offered to the E3 visa worker can include but is not limited to:

Federal income tax returns for the past 3 years
State Quarterly Wage Report (which should include the name, salary, and number of weeks worked for all employees)
Business licenses from the city, county, state, and federal government
Detailed description of the U.S. sponsoring employer’s organization. It should include:

o Company brochures

o Website

o Pamphlets

o Press releases

o Business plans

o Promotion materials

o Advertisements

o Patents

o Articles

o Other documents that show the U.S. sponsoring employer’s products or services

Organizational chart or diagram (which should include the hierarchy structure, staffing levels, all divisions, identification of the E3 visa worker’s job position, names and job titles of the people listed)
List the names and job titles of the E3 visa worker’s supervisors and subordinates
List of all employees (which should include names, job titles, immigration status such as H1B, L1, E1, E2, F1, permanent resident, U.S. citizen)
Description of the E3 visa worker’s specific workplace. It should include:

o Define the workplace (e.g., distribution, sales, office, representative agency)

o The type of building (e.g., warehouse, office suite, apartment, residence)

o How many hours the E3 visa worker will actually work at the location each week

o Business hours

Documents that show business is being done (active) at the location. It should include:

o Utility bills

o Telephone bills

o Business licenses

o Payroll documents

o Rent receipts

o Bank statements

Leases of the business premises must be signed and dated, and include:

o Monthly rental fee

o Total square footage of premises (which should include all office, manufacturing, production, warehouse spaces)

Property records that show ownership of physical location if not renting

Under the E3 visa petition, the E3 visa worker must be working for the U.S. sponsoring employer as an employee (which means that independent contractors are not qualified for E3 visa petitions). The employer-employee relationship under the E3 visa is where the U.S. sponsoring employer has the right to control the work of the E3 visa worker (e.g., hire, fire, supervision). The employer-employee relationship under the E3 visa can be determined by the following factors:

Location of workplace
Skill required to perform the specialty occupation work
The source of tools and instrumentalities required to perform the specialty occupation work
Duration of the relationship between the U.S. sponsoring employer and the E3 visa worker
The U.S. sponsoring employer’s right to hire, fire, assign additional work, set rules and regulations on the E3 visa worker’s work
The extent of discretion that the E3 visa worker has over how long and when to work
Method of paying the E3 visa worker’s salary
The E3 visa worker’s role in hiring and paying for assistants
Whether the specialty occupation work is part of the U.S. sponsoring employer’s regular business
Bonafide (i.e., real) business
Employee benefits
Tax treatment of the E3 visa worker
The extent of supervision the U.S. sponsoring employer has on the E3 visa worker’s work
Whether the E3 visa worker reports to someone higher in the organization

The U.S. sponsoring employer must have enough qualifying assignments in a specialty occupation for the E3 visa worker to do. This requirement is to make sure that the business of the U.S. sponsoring employer actually needs a person to work in a specific professional job position (specialty occupation) and that it also has the capacity to hire an E3 visa worker to perform that type of work.

Evidence that shows the U.S. employer has enough in-house specialty occupation work for the E3 visa worker to perform can include but is not limited to:

Employment agreement (it should include the employment terms and be signed)
Offer letter (which should include the description of the services to be performed by the E3 visa worker and the employer-employee relationship between the E3 visa worker and the U.S. sponsoring employer)
Description of E3 visa job position or other documents that shows:

o The skills required for the job position

o The tools required to perform the job

o The service to be provided

o Method of payment

o Products to be developed

o Whether the work is part of the U.S. sponsoring employer’s regular business

o Employee benefits

o Tax treatment

Documents of actual work assignments (which may include marketing analysis, technical documentation, milestone tables, cost-benefit analysis, brochures, funding documents)
Past work product created by current or past employees in similar positions. It should include:

o Reports

o Evaluations

o Designs

o Blueprints

o Presentations

Documents to show in-house projects (which should include income and expense projections, market analyses, timelines, number of required workers, work locations)
Documents of enough production space and equipment for the E3 visa worker’s specialty occupation work
Detailed explanation of:

o The E3 visa worker’s job duties and responsibilities

o Percentage of time spent on each duty

o The reason why the work requires a person that has at least a bachelor’s degree (or its equivalent) in that specific specialty

o The required qualifications for the job position

E3 VISA GENERAL PROCESS & STATUS CHANGE

There are 4 main steps in the general process of obtaining an E3 visa:

Step 1: Job Offer for a Qualified E3 Visa Job Position from U.S. Sponsoring Employer

The foreign worker must receive a job offer that qualifies for an E3 visa job position from a U.S. employer. The U.S. employer must be willing to sponsor (initiate) the E3 visa petition for the person which means that the E3 visa worker cannot self-sponsor themselves for an E3 visa.

Step 2: Obtaining an Approved LCA Certification

The U.S. sponsoring employer must file and obtain an approved Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) before the E3 visa petition can be filed with the USCIS or the DOS. A copy of the certified LCA should be given to the E3 visa worker before they start working. The LCA includes information such as the position title, wage, employment dates, location, the source used for determination of the prevailing wage, and the employer’s attestation that:

The E3 visa worker’s wage will be at least the same as the actual wage the employer pays to other similarly employed workers OR the local prevailing wage for the position.
The working conditions (e.g., hours, fringe benefits, vacation time) of other similarly employed workers in the area will not be affected adversely.
There is no strike or lockout at the proposed workplace.
The LCA has been provided to the union or it has been posted at the proposed workplace in at least 2 conspicuous locations (or through electronic posting on intranet/electronic bulletin boards or direct one-time emails to affected employees) for a period of 10 days within the 30-day period before filing the LCA with the DOL.

If a strike, lockout, or work stoppage due to a labor dispute happens at the E3 visa work location, the U.S. employer is required to notify the Employment and Training Administration within 3 days and must stop the work of the E3 visa worker at that location. There are fines, prohibitions on filing future visa petitions, and/or random investigations on U.S. employers who are found to be willful violators of the LCA certification.

Prevailing Wage and Actual Wage Determination

The U.S. employer sponsoring the E3 visa petition is required to pay the E3 visa worker the prevailing wage or the actual wage paid to other similarly employed workers (whichever is higher).

Prevailing Wage Determination

The prevailing wage is the average rate of wages paid to workers employed in a similar capacity in the area where the E3 visa worker’s employment is intended. The National Prevailing Wage Center (NPWC) uses factors such as job title, job description, required education and work experience, location, and employer type (i.e. private corporations, government, academic) to determine the prevailing wage. For example, the same exact job offered in San Francisco, California would likely have a higher prevailing wage than in Champaign, Illinois due to the cost of living in the respective locations.

For academic or research job positions at schools of higher education (or their affiliated or related nonprofits), nonprofit research organizations, or governmental research organizations, the prevailing wage only looks at the wages given at similar institutions in order to avoid requiring academic institutions to match the salaries given in the private industry.

Actual Wage Determination

The actual wage is the amount the U.S. employer pays other employees who are similarly employed and have similar qualifications and experiences. The U.S. employer is also required to give the E3 visa worker the same benefits offered to other similarly situated employees.

E3 Visa Public Access File

The U.S. employer should have a public access file of the E3 visa petitions, which includes but is not limited to:

LCA certification (should include cover pages, U.S. employer’s original signature and the E3 visa worker’s signature to show that they received a copy)
Prevailing wage determination (from NPWHC, survey, or other sources that were used)
Documents that show the wage given to the E3 visa worker (such as an offer letter)
Notice given to union
Explanation of how the actual wage was determined
Summary of benefits offered to the E3 visa worker (should show that it is the same as what is given to other similarly employed U.S. workers)

Step 3: Filing the E3 Visa Petition with U.S. Consulate or USCIS

The E3 visa petition must be filed with the USCIS or the U.S. consulate overseas. Typically, the E3 visa petitions are filed with the U.S. consulates in part because of the long processing times with the USCIS.

Step 4: Consular Processing or Change of Status (E3 Visa)

After the E3 visa petition is approved by the USCIS or the DOS, the person would need to change into their E3 visa status which involves either consular processing at the U.S. consulate or embassy overseas (typically done for E3 visas) or a change of status in the United States.

Change of status is usually for a person who is already in the United States with another valid nonimmigrant visa status and has maintained a lawful visa status throughout their time in the United States. On the other hand, consular processing is for a person who lives outside the United States or for a person who is ineligible to change their status in the United States due to noncompliance of U.S. immigration law (e.g., overstayed on their previous visa status, worked when they did not have valid U.S. work authorization, the visa status they used to enter the United States does not allow them to change into another type of visa status, etc.)

Person Outside U.S. (or Person Ineligible for Change of Status)

For a person who is residing overseas (outside the United States) or a person who is ineligible for change of status with the E3 visa petition (Form I-129), consular processing must be done to obtain the E3 visa status. Consular processing involves the person attending an in-person interview at the U.S. consulate or embassy usually in the person’s home country. In some certain circumstances, a person can do consular processing in another country as a “Third Country National.”

After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport) which means that the person would have to physically enter the United States as the final step for the E3 visa status to be activated.

Person Residing in the U.S. (Maintained Lawful Visa Status)

For a person who is already in the United States with another valid nonimmigrant visa, there are usually two options available to obtain the E3 visa status:

(1) Change of Status: this is the more commonly chosen option where the person states that they would like to change their status without leaving the United States in their E3 visa petition (Form I-129). If the person is eligible (no violations of U.S. immigration laws), then their nonimmigrant visa status will be changed upon the approved employment start date listed in the E3 visa petition. In cases where the person’s change of status request is denied or the person needs to change it into consular processing, an application for action on an approved application or petition (Form I-824) may be required.

(2) Consular Processing: this must be chosen if a person cannot show that they have maintained lawful visa status in the United States or for any other reasons such as the person needs to travel internationally before the E3 visa petition is approved.

E3 VISA PROCESSING TIME

The total time an E3 visa takes is consisted of the processing time for the (1) E3 visa petition (Form I-129) with the USCIS and/or the (2) visa application (DS-160) at a U.S. consulate or embassy overseas if the person is not already in the United States or is ineligible to do a change of status within the United States.

A rough estimate for the Form I-129 for the E3 visa with the USCIS is around 3 to 6 months and premium processing is not available for E3 visas. Typically, it is faster to do consular processing for the E3 visa which is applying for the E3 visa at a U.S. consulate or embassy overseas (typically in Australia). The processing time of applying for an E3 visa at the U.S. consulate or embassy overseas depends on the availability of appointments at that specific U.S. consulate or embassy which can range from days to months.

Factors that influence the E3 visa petition processing time usually include but are not limited to if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center and the U.S. consulate or embassy.

E3 VISA CHANGE IN EMPLOYMENT

A change in employment for the E3 visa worker usually means that (1) the person will be working for another employer, (2) the person will be working for multiple employers at the same time, (3) the person’s employment was terminated earlier than expected, (4) the person will change from working full-time to working part-time, or (5) there was a material change in the person’s employment or E3 visa eligibility.

Change in Employer

If the E3 visa worker changes to a new employer, a new E3 visa petition must be filed. The E3 visa worker cannot start working for the new employer before their new E3 visa petition is approved (which means it does not have the portability rule like the H1B visa). The E3 visa approval can be an approved E3 visa petition (Form I-129) by the USCIS or an approved E3 visa from a U.S. consulate or embassy overseas.

Concurrent Employment

The E3 visa worker can work (part-time or full-time) for multiple employers at the same time but each employer must file a separate E3 visa petition for the E3 visa worker.

Amended Petition

An amended E3 visa petition would be required if there is a material change in the terms and conditions of the E3 visa worker’s employment or in the E3 visa worker’s visa eligibility. For example, the E3 visa worker will be working in a job that is under a different occupational classification such as an accountant changing into an engineer.

Early Termination

If the E3 visa worker’s employment ends before their visa status expiration date, the person will have a 60-day grace period (or till their existing expiration date if it comes earlier) to stay in the United States to seek other employment, change their visa status, or take care of affairs before departing the United States. However, the E3 visa worker is not allowed to work during that 60-day grace period.

E3 VISA FAMILY MEMBERS (E3D VISA)

Dependent family members (spouse and unmarried children under 21 years old) of E3 visa workers are allowed to stay in the United States under the E3D visa status and do not need to have the same nationalities as the principal E3 visa worker. The E3D spouse (not the E3D child) can legally work in the United States with an employment authorization document (EAD, Form I-765).

E3 VISA LIMITED DUAL INTENT

Dual intent visas allow the foreign person to have both an intent to temporarily stay in the United States and an intent to permanently stay in the United States. The intention to permanently stay in the United States can be shown when the foreign person has a pending green card petition with the USCIS or an approved PERM labor certification from the U.S. Department of Labor.

The E3 visas are limited dual intent visas which means that the timing of any green card application or petition must be carefully strategized. Having dual intention (which is possessing an immigrant intent and a nonimmigrant intent at the same time) is very tricky for E3 visa holders because the U.S. Department of State (i.e., U.S. consulate or embassies) does not recognize it as a dual intent visa but the U.S. Citizenship and Immigration Service (“USCIS”) in practice does treat it as a dual intent visa limited with certain restrictions.

Due to the situation described above (i.e., the different beliefs that the U.S. consulate or embassy and the USCIS hold on the dual intent of the E3 visa), showing an immigrant intent can cause issues with the E3 visa holder’s eligibility to renew (extend) their visa or apply for other nonimmigrant (temporary) visas to travel to the United States. For example, an E3 visa renewal (extension) will likely be denied if an E3 visa holder who has a pending green card petition (which shows immigrant intent) applies for it at the U.S. consulate or embassy (i.e., part of the Department of State), whereas it will likely be approved if it was applied for with the USCIS.

Another issue that may arise when the E3 visa holder shows an immigrant intent is when they return to the United States after traveling internationally. For example, an E3 visa holder who has a pending green card application may be denied admission into the United States by the CBP officers at the border (e.g., airport) because the CBP is a part of the U.S. Department of State that believes the E3 visa is not a dual intent visa (i.e., cannot have an immigrant intent) and that having a pending green card application shows that the person has an intention of staying in the United States permanently. So, unlike visas (e.g., H1 visa, L1 visa) that allow dual intention, E3 visa holders should be more cautious when deciding whether they must travel internationally after they file for a green card (immigrant visa) petition.

DIFFERENCE BETWEEN THE E3 VISA AND THE H1B VISA

The differences between the E3 visa and the H1B visa include:

CONCLUSION (TLDR)

The E3 visa allows Australian workers to work in a professional specialty job position that requires at least a Bachelor’s degree in the United States.

Alternatives to the E3 Visa Petition

For people who do not qualify for the E3 visa work visa petition, the closest alternatives would be filing for an H1B visa petition which are for foreign workers to work in specialty occupations that require at least a bachelor’s degree (i.e., it has the same general requirements as the E3 visa but it is available for foreign workers from all countries and has some different visa characteristics such as being a dual intent visa), O1 visa petitions for people who has an extraordinary ability in the sciences, arts, education, business, or athletics, or L1B visa petition for employees who have specialized knowledge of the multinational company that they are working for.

Another possible alternative to filing an E3 visa petition would be to file for a green card petition which is a permanent immigrant visa and not a temporary work visa like the E3 visa. Typically, a person who is qualifiable for an E3 visa would choose to file for an EB2 green card (for persons who have at least a master’s degree or a bachelor’s degree and 5 years of post-college progressive work experience) or an EB3 green card (for persons who have at least a bachelor’s degree). For more on green cards gained through work, please read the overview for employment-based green cards.

E3 Visa Transitioning into a Green Card

The main difference between a green card and a temporary work visa (such as an E3 visa, TN visa, L1 visa, O1 visa, H1B visa, P1 visa, TN visa, E2 visa) is that a green card holder can freely change jobs among different employers without needing additional filings or approvals from the U.S. government. Also, unlike temporary work visas, green cards are permanent so there is no set maximum time on how long a green card holder can stay in the United States.

When the E3 visa workers decide that they would like to live in the United States permanently and do not want to be subject to the time limitations or the constant filing requirements to extend (renew) their temporary work visa, the next step for them is to file a green card petition. Typically, a person who is qualifiable for an E3 visa would choose to file for an EB2 green card (for persons who have at least a master’s degree or a bachelor’s degree and 5 years of post-college progressive work experience) or an EB3 green card (for persons who have at least a bachelor’s degree).

However, it must be cautioned that due to the E3 visa only allowing limited dual intent, there may be potential issues of maintaining or extending the E3 visa status for employees who needs to continue using a nonimmigrant visa throughout the time their green card petition is pending. Thus, an E3 visa worker must carefully strategize the timing of filing their green card petition.

Furthermore, a person can qualify for an employment-based green card no matter where they are currently residing in the world. There is no pre-requisite as to the person being in some type of nonimmigrant visa status (such as an E3 visa) or having an educational degree from a U.S. school. In other words, a person who does not have a U.S. degree and has never been to the United States can still qualify for an employment-based green card. Thus, even if a person is not in an E3 visa status yet but does have the qualifications for an E3 visa, they can alternatively choose to file for an EB2 green card or an EB3 green card petition instead.

HAVE A E3 VISA IMMIGRATION QUESTION? CONTACT US

If you have an E3 visa (Australian Specialty Workers) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.

How we can help?

Kylie Huang Law’s immigration attorney will help identify whether the E3 visa is the appropriate nonimmigrant visa category for the client’s (or the client’s beneficiary’s) professional background and if there are other visa options for the client (or the client’s beneficiary). We will work closely with our client to prepare a convincing case for their (or it’s) E3 visa petition and we will also strategize on how the E3 visa petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an E3 visa petition due to the complexities in the immigration process and visa requirements.

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