E-3

The E-3 visa is a temporary visa that permits U.S. businesses to employ Australian workers for two years at a time. 

Requirements: To qualify for the visa, we must prove all of the following:

1. The worker must show that he or she has a university degree or a combination of education and work experience that is equivalent to a university degree (the rule of thumb is three years of work experience equal one year of university education).
2. The employer must show that the position the worker will fill qualifies as a “specialty occupation.” A “specialty occupation” is defined as a position for which the minimum entry requirement to work in the position is a bachelor’s or higher degree in a subject related to the position.  Some examples of “specialty occupations” are engineers, computer programmer/analysts, teachers, technical writers, and market research analysts.
3. The employer must agree to pay the prevailing wage for the specialty occupation in the area of employment. The prevailing wage is usually determined by using a government wage survey.

The E-3 Visa permits part-time or full-time employment.  But, the visa is employer specific.  This means that the worker only receives permission to work for the sponsoring business.

The employer can be a new or small business.  The foreign worker is permitted to own all or part of the business.  However, the government may require additional forms of evidence in these cases, such as proof that the business can afford to pay the foreign worker and proof that the business really needs the services of a worker with a degree.

The U.S. government limits the number of new E-3 Visas to 10,500 per year. 

The spouse and children under 21 may live in the U.S. with the E-3 worker.  The E-3 spouse can obtain work authorization after he or she arrives in the U.S. (this takes about 2 to 3 months).  The E-3 children cannot work, but can attend any school (public or private).

Duration of E-3 Visa: The foreigner worker will initially receive permission to live and work in the U.S. for two years.  It is possible to extend the visa for additional periods of two years without limit as long as the worker can show that he or she does not have the intent to remain in the U.S. permanently.

Application Procedures: There are three steps involved in obtaining an E-3 Visa:

Step 1- Prevailing Wage: The employer must determine the “prevailing wage” for the position it is offering the foreign worker.  Normally, this involves sending a prevailing wage request form to the state department of labor or employment security agency.  We do this for you.  It normally takes 1 to 2 weeks to determine the prevailing wage (sometimes faster).  However, we can often obtain preliminary prevailing wage information via the internet very quickly. 

Step 2- Labor Condition Attestation: The employer must file a Labor Condition Attestation (LCA) with the Department of Labor.  The LCA is a form on which the employer promises to pay the employee 100% of the “prevailing wage” for the position. 

As part of the LCA process, the employer also must also promise that it will comply with a number of regulations related to working conditions, record-keeping, and provision of notice to other employees of available job opportunities.   We can provide more information about these special rules and obligations.  We normally submit the LCA form via the internet.  It takes 1 to 3 days to complete the LCA certification process.

Step 3- Application for E-3 Visa: The employer must sign and submit an application for an E-3 Visa to a U.S. consulate abroad (it can be a consulate in Australia or in the foreign worker’s country of residence if not Australia).  Generally the application is submitted in person at the U.S. consulate by the prospective worker at an appointment that we arrange for the worker.

In the E-3 application, the employer and worker must prove all of the requirements listed above.  This includes evidence that the worker has a university degree or the equivalent and evidence that the position offered qualifies as a “specialty occupation.” 

We prepare all the forms for E-3 visa application and assist with the preparation of a “letter of explanation” from the employer.  We also oversee processing of the application; ensuring that all necessary documents are enclosed, all regulations are complied with, and all fees are paid. 

The U.S. consulate generally offers appointments within a 30 day period and, if the E-3 application is approved, will usually grant the visa within 2-4 days after the appointment.

Government Fees and Other Costs: In addition to our legal fee, the foreign worker and/or the employer will have to pay a number of government fees and other costs.  These include the following:

• The consulate charges a government fee in the amount of $131 per person.
• The employer or the foreign worker may have to pay for an evaluation of the foreign worker’s foreign education or work experience.  The evaluation must conclude that the worker’s education and/or work experience is equivalent to a U.S. university degree.  The cost of the evaluation varies in each case, but is usually between $100 and $600.

Other Filing Options and Issues: 

Change of Status: If the worker is in the U.S. with some other type of visa (e.g. an F-1 Student Visa or a B-2 Visitor Visa but NOT an 90 day visa waiver), then we can file a petition with the U.S. Citizenship and Immigration Service to change the status of the worker to E-3.  If approved, the worker will receive permission to stay and work for 24 months. 

A worker who changes his or her nonimmigrant status in the U.S. must plan international travel very carefully.  The worker will not be allowed to use the approval notice to re-enter the U.S.  On the worker’s first trip out of the U.S., he or she will have to apply for an E-3 visa at the U.S. consulate abroad.  It is not possible to get the E-3 visa issued in the U.S.

Social Security Number: After issuance of an E-3 visa or a change of nonimmigrant status to E-3, the worker can use his or her approval notice and/or E-3 Visa to obtain a social security number.  Often the employer will not permit the worker to begin until the after he or she receives the social security number.  This is not necessary, but is common with many employers.  It may take two to four weeks to get the social security number.

Changes in Employer or Job Duties: If the foreign worker wants to change jobs to a new employer, the new employer must file a petition to amend the worker’s E-3 Status or must file for a new E-3 Visa at a U.S. consulate. The foreign worker may not start working for the new employer until the new E-3 amendment petition or the new E-3 visa is approved.

If the foreign worker wants to change jobs with the same employer (for example, if he or she receives a promotion), then a petition to amend the worker’s E-3 status may also be required. 

If the employer merges or is acquired by another company, we should be contacted immediately.  An E-3 Amendment petition may be required.  If the employer goes out of business or terminates the worker, we should also be contacted as immediately.  The worker begins to violate his or her E-3 status as soon as he or she stops working for the employer.