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E-3 Visas

What is an E-3 Visa?

Thanks to a Free Trade Agreement between Australia and the United States, since 2005 E-3 Visas have been available to Australian nationals who will perform specialty occupation work in the United States – or, work that requires an employee to have earned at least a U.S. or Australian bachelor’s degree (or its equivalent in other formal education and/or progressive professional experience) in a specific area of study. E-3 Visas are available in two-year increments and may be renewed indefinitely, but do require their holders to have 100% nonimmigrant intent, meaning E-3 Applicants must attest to the fact that they do not intend to abandon their residence outside the United States.

E-3D Visas are available to the spouses and unmarried children who are under 21 years of age, regardless of their citizenship. Even more, E-3D spouses are eligible to apply for employment authorization upon arrival to the United States in that status.

There are 10,500 new E-3 Visas available every year, and that quota has never been met. For that reason, there have been discussions of extending the E-3 Visa to Irish nationals, as well. But for now, Australians receive special treatment when it comes to this nonimmigrant visa category.

How do you get an E-3 Visa?

An attractive feature of the E-3 Visa is that Australian nationals may apply for them directly at a U.S. Embassy/Consulate abroad. In other words, Australian nationals may not need to obtain approval from the internal agency, U.S. Citizenship and Immigration Services (“USCIS”), which traditionally takes a tougher stance with E-3 and other specialty occupation (H-1B, H-1B1) filings, before making an appointment at the Embassy/Consulate. In addition, the internal filing fee of $460.00 USD is more than double the consular fee of $205.00 USD, and with Premium Processing now available to E-3 Petitions, that fee raises the price of filing the internal Petition by $2,500.00 (in exchange for a guaranteed response on the case within 15 business days of receipt). And if approved without administrative processing, Australian nationals can have their E-3 Visas in their passports within 3-5 business days of attending their appointment. By comparison, the current regular processing time for internally filed E-3 Petitions is 5-7 months, and the above-mentioned Premium Processing carries a $2,500.00 price tag for a decision in 15 business days. Accordingly, and also due to the fact that Australian nationals require valid E-3 Visas annotated for their current employers in order to travel to and from the United States, we usually advise E-3 Visa holders to consular process when it comes time to extend their E-3 Visas and/or E-3 status, as well as when they want to change employers. These circumstances will be discussed further below in the Common Issues section.

However, thanks to the complications of international travel posed by COVID-19, more and more Australian Nationals have faced intense difficulties securing international flights and/or scheduling consular appointments abroad. In these conditions, they have elected (or been forced) to have their employers file E-3 Petitions with USCIS. As noted above, until February 23, 2021, E-3 Petitioners were forced to rely on Regular Processing, which may take 5-7 months for USCIS to approve the E-3 Petition. However, as of February 24, 2021, USCIS began accepting Premium Processing, meaning E-3 employers and employees can now pay an extra $2,500.00 USD fee to secure a decision within 15 business days of filing. If the Petition is for a timely-filed E-3 Extension with the same employer, the 5-7-month delay may be withstood (and, in some cases, even preferred) due to provisions that will be discussed in greater detail below. However - and as also discussed below - that calculation may differ if the E-3 Petition requests a change of employer or change of status, as these requests must be approved before commencing work. As such, the now-available Premium Processing opens an additional option for individuals and their employers that find themselves in this situation.

Whether filing directly at a Consulate/Embassy or via USCIS, requests for E-3 visas must include the following documents:

  • A Certified Labor Condition Application (“LCA”), filed with the U.S. Department of Labor, in which the E-3 employer, amongst other things, attests to the fact that they will pay the E-3 Visa holder a qualifying wage – which is either the actual wage (based on what someone at the company customarily earns) or the prevailing wage (based on local wage data, what someone in the specific profession in the applicable metropolitan statistical area customarily earns), whichever is higher. In other words, the prevailing wage serves as a floor for what the E-3 holder must be paid; but if the actual wage is higher, they must receive that higher wage.

     

  • Confirmation of a bona fide offer of employment in a specialty occupation role, which may take the form of an offer letter/employment contract, or a detailed letter of support outlining the sponsor’s business, the proffered role (including in-depth job duties), and a description of the E-3 holder’s qualifications. In addition to conveying the complexity of the role (i.e., that it requires someone to have earned at least a bachelor’s degree in a specific area of study), this evidence must demonstrate that there is a valid employer-employee relationship between the E-3 holder and the sponsoring entity. As such, E-3 Visas cannot be “self-sponsored,” and if a sponsor’s founder, executive, and/or prominent shareholder wishes to secure an E-3 Visa, they must submit proof that their employment is severable from their ownership.

     

  • Proof that the E-3 holder has earned at least a U.S. Bachelor’s Degree in the specific field of study required by the employer, or in a closely related field of study, as well as any applicable professional licensure needed to fill the role. If the Australian national has earned an Australian Bachelor’s Degree, that should suffice (more on that below). If the Australian national earned a degree from another country, they must obtain an academic equivalency evaluation to equate the degree to a four-year U.S. Bachelor’s Degree. Likewise, Australian nationals may earn the equivalent of a four-year U.S. Bachelor’s Degree by virtue of formal education and/or progressive professional experience. Regarding the latter – it is commonly accepted that if established through documentary evidence, every three years of progressive professional experience is equal to one year of formal school. Accordingly, an Australian national with 12 years of progressive professional experience in the field, or a combination of formal schooling and progressive professional experience, may meet the educational requirements of the E-3 Visa.

Applications submitted via consular processing should also include the DS-160 Confirmation Page, MRV Fee Receipt, and the Appointment Confirmation Page. Similar documentation is also required when mailing-in an E-3 Visa, which is available to certain individuals physically present in Australia. On the other hand, a USCIS filing must include the I-129 Petition and Free Trade Supplement (and, if utilizing Premium Processing, a Form I-907). It is also worth noting that an Australian national may use an E-3 Approval Notice issued by USCIS to apply for an E-3 Visa at a U.S. Consulate abroad.

Common Issues with E-3 Visas

Having processed countless E-3 Visa Applications abroad and Petitions domestically, several issues continuously pop-up for E-3 sponsors and employees alike. These issues include, but are not limited to, the following:

What happens if there are changes to my E-3 employment?

What, if anything, that must be done will depend on the nature of any changes to the previously approved employment. Material changes trigger the need to file an Amended E-3 Petition, or apply for a new E-3 Visa outside the United States. Frequent examples of material changes include but are not limited to re-assignment to a different work location, transitioning from full-to-part-time work (or vise-versa), and increased job responsibilities/augmented duties that significantly alter the position in light of prevailing wage concerns. If you have questions regarding where a change is material or immaterial, we suggest you contact an experienced immigration attorney.

Can I work for more than one E-3 employer?

Yes, but you must either (a) apply for a concurrent E-3 Visa at the Consulate, which requires 2 sets of paperwork (2 LCAs, 2 employment offers), in which case you may work for both employers upon admission to the United States; or (b) apply for concurrent E-3 employment within the United States, in which case you must wait for the Petition’s approvable before assuming the employment described therein. As that concurrent employment may involve a material change to previously approved employment (i.e., you may need to file 2 E-3 Petitions – one Amended Petition, and one for concurrent employment) – we suggest you consult with an experienced immigration attorney before embarking on this path.

Can I change my E-3 employer?

Yes, by either leaving the United States and applying for a new E-3 Visa, or submitting an E-3 Petition that requests a change of employer. For the same reasons discussed above (ease of processing, need to apply for a Visa at some point anyway), consular processing has been traditionally favored over internal filings, which USCIS must approve before the employment in question may commence. However, things have not been “traditional” for nearly 1 year, which is why more E-3 employers and employees have gone the internal route over the past 12 months. And now that Premium Processing is available, an internal filing may become an even more appealing option.

What happens if I lose or quit my job?

Whether voluntary or involuntary, E-3 employees who cease working for their E-3 employers enter a grace period that is either (a) 60 days; or (b) the remaining portion of their E-3 status as indicated on their I-94, whichever is shorter. During those 60 days, the E-3 employee must have a new E-3 Petition filed on their behalf, submit an alternative request with USCIS (for example, a change of status to visitor), or depart the United States. If a new Petition arrives with USCIS within the applicable Grace Period, the E-3 employee is protected while it is pending; however, they cannot begin working for the new employer until the case has been approved (which, thanks to Premium Processing, could be a lot sooner than before). Similarly, a change of status filed within the 60-day grace period also protects the E-3 employee so long as it is pending and submitted in good faith. In that situation, the E-3 employee must abide by the terms of their newly requested status. As such, if an E-3 employee seeks B-2 status as a Visitor for Pleasure/Tourism, they may not work, either, even if it is for an employer located outside the United States. Lastly, it may be permissible for an E-3 employee to file a change of status to another nonimmigrant classification, and subsequently have a new employer file an E-3 Petition requesting a change of status back to E-3. Such situations are highly delicate and require detailed scrutiny, which is why we suggest engaging an experience immigration attorney.

Can I extend my E-3 status without leaving the United States? Can I stay after my E-3 I-94 has expired?

The answer to these related questions is “yes,” but with a major caveat: only if the internal Extension is timely filed. So long as the E-3 Extension Petition arrives before the E-3 holder’s I-94 expires, the individual remains in an authorized period of stay, and may continue working while the Petition is pending, up-to-240-days beyond their expiration. We do not suggest waiting until the last day to submit the E-3 Extension Petition; but as long as that Petition arrives on or before the day the employee’s i-94 expires, the E-3 employee remains permitted to work with their E-3 sponsor. On the other hand – if a timely-filed E-3 Extension Petition (or other change of status request described above) does not arrive at USCIS within the prescribed time frame, the E-3 employee must depart the United States as soon as possible unless they can make a convincing argument that any delay was for reasons outside of their control.

What happens if my E-3 Visa expires before my E-3 I-94 and/or E-3 LCA?

A very common question, especially during COVID-19, is how to treat the consistent inconsistencies between applicable expiration dates for E-3 Visa holders. Even though U.S. Embassies/Consulates are instructed to issue E-3 Visas for the duration of the LCAs used to apply for them, these dates frequently do not match. More frequently, an E-3 Visa holder will be granted a 2-year period of admission no matter when they travel to the United States, even if that means their E-3 I-94 extends beyond their E-3 Visa and/or E-3 LCA. These inconsistencies offer potential windfalls to E-3 employers and employees alike, but not necessarily. As these circumstances merit individualized analysis to confirm what, if anything, can be done to maintain compliance with E-3 Regulations, if you find yourself in this situation we suggest you contact an experienced immigration attorney to discuss the particulars of your case.

When can my E-3D spouse apply for work authorization?

Unfortunately, E-3D spouses cannot request work authorization (an Employment Authorization Document, or “EAD”) in advance of their arrival to the United States. Instead, they must be physically present in E-3D status in order to submit an EAD Application, which presently carries a fee of $410.00 USD. However, the E-3D spouse may depart the United States after the EAD Application has arrived, and return to the States once the EAD has been issued, so as to allow them to work abroad while waiting for permission to work in the United States. E-3D EADs must be valid to authorize work, and timely submitted an EAD renewal does not automatically extend work authorization (as is the case with a timely-filed E-3 Extension Petition). Further, Premium Processing does not apply for E-3D Extensions or E-3D EAD renewals. Therefore, it is essential that E-3 Visa holders and their E-3D spouses pay close attention to their EAD, Visa, and I-94 expiration dates in order to coordinate the several moving parts that will allow them to file EAD renewals and hopefully avoid an interruption of work authorization.

Can my E-3D dependents attend U.S. schools?

Yes! In fact, E-3D spouses and children may even attend U.S. universities. However, if they hold E-3D status while in school, they will not have access to the same employment-related opportunities that come with F-1 student status (e.g., post-completion Optional Practical Training). Likewise, E-3D children who are in U.S. universities who reach 21 years of age must switch to F-1 to continue their studies (or, as alluded to above, accept certain types of employment).

My partner and I are not married. Can they still qualify for an E-3D Visa?

U.S. immigration law does not recognize common law marriages or civil unions, instead requiring spouses to be legally married in order to be eligible for derivative status. If you and your spouse are not legally married, they may apply for a B-2 Visa under a special provision for cohabitating partners.

Conclusion

We hope that you find this information to be a helpful outline of the E-3 process. While instructive, we also imagine that this information may lead to additional questions regarding your specific situation – especially in light of USCIS making Premium Processing available to this classification as of February 24, 2021. For these reasons, we strongly encourage you to reach out to our office. With our extensive experience in this field, we will happily make time to strategize how best to address your needs.


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