Specialty Occupation Professionals from Australia
INA § 101(a)(15)(E)(iii), 8 CFR §214.2
The E-3 visa is a non-immigrant work visa that applies only to nationals of Australia that was created by the U.S. Congress in 2005, subsequent to the signing of the Australia-United States Free Trade Agreement (AUSFTA).
The E-3 visa is a curious amalgamation of various other work visas. The qualification criteria are similar to that of an H-1B: E-3 visas require an LCA and necessitate specialty occupation as well as baccalaureate or equivalent qualifications. However, the application procedure is more similar to E and TN visas, where the Department of State can approve initial E-3 applications at the Embassy or Consulate (as opposed to the H-1B or L-1 classifications, where USCIS must adjudicate the initial application prior to visa issuance).
While there is a congressional limitation of 10,500 E-3 visas to be issued per year, the annual allotment has never been fully utilized in the history of this classification and the E-3 remains an extremely viable and valuable visa option for companies wishing to hire Australian nationals.
- The Beneficiary must be of Australian nationality.
- The employee (beneficiary) must have at least a bachelor’s degree, or the equivalent, from an accredited college or university;
- The employer must obtain certification from the Department of Labor on a Labor Condition Application (LCA);
- The offered position must be in a specialty occupation. A specialty occupation requires:
- Theoretical and practical application of a body of highly specialized knowledge, and
- The attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.
Labor Condition Application (LCA)
In order to obtain an E-3 Visa, the employer must submit a Labor Condition Application (LCA) to the Department of Labor (DOL) which outlines that:
- The employment of the foreign national does not harm American workers,
- The foreign worker will be paid the prevailing wage for the industry in which they will work,
- The employer will not employ the foreign national in the event of a strike or lock-out. Once the application is approved, the employer must file a petition with the United States Citizenship and Immigration Services (USCIS).
E-3 visa classification can be secured thorough application abroad or through application within the U.S. (at USCIS).
Australian nationals are generally required to secure a visa prior to admission into the U.S. and initial E-3 applications are often made directly at the U.S. Embassies and Consulates in Australia. Once the E-3 visa stamp is secured in the applicant’s passport, he or she can apply for admission at the port of entry.
Once an individual is in the U.S., they can apply for extensions of E-3 status through USCIS. Additionally, Beneficiaries can change status to E-3 while in the U.S. on another valid status through USCIS applications.
Beneficiaries of E-3 visas may be joined by their qualifying dependents (spouses and children). Qualifying dependents would apply for dependent E-3D visas. Upon entrance into the U.S. E-3Ds may apply for work authorization.
E-3 visas may be granted for a period of 2 years, however admission and duration is at the discretion of the CBP admission officer and / or USCIS Adjudication Officer.
The E-3 visa is non-immigrant in nature and applicants must state the intent to depart the United States when the E-3 visa ends at the time of application and admission. However, there are no time limitations on the total duration of E-3 visa status and the visa can be extended in discrete increments indefinitely.
Dual-Intent and Future Green Card Applications
E-3 visas are non-immigrant in nature do not enjoy the full benefit of “dual intent, however the requirement to establish intent at the time of green card filing is a llower legal standard than other strictly non-immigrant visas and it is possible to file a green card case while on E-3 visa status. However, timing is absolutely critical and in order to protect the non-immigrant status and any green card application, all travel and entries into the U.S. should be carefully monitored in association with the progress of the green card application.
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