E-3 Visa for Australians

The E-3 visa was created in 2005 to allow for the admission of nationals of the Commonwealth of Australia who will perform services in a "specialty occupation." The E-3 visa contains components of both the H-1B visa and the E treaty visa and can be viewed as a hybrid useful to Australian nationals seeking work in the United States.

The term "specialty occupation" means the occupation requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's degree or higher in the specialty (or its equivalent). This definition is the same as for an H-1B.

Like the H-1B, the petitioning employer must file a Labor Condition Application with the U.S. Secretary of Labor and make the same attestations including those regarding paying the prevailing and actual wages, not breaking up strikes, maintaining public access files, etc.

The number of E-3 visas is limited to 10,500 per fiscal year. This cap applies to all initial E-3 applications made abroad at a U.S. consulate and to all applications for a change of status to E-3 made through U.S. Citizenship and Immigration Services. The cap does not apply to E-3 extensions if the E-3 alien continues to be employed by the same employer named in the original E-3 application. If an E-3 alien seeks to change employers, the E-3 alien will again be counted against the cap.

E-3 status may be obtained by applying for the visa at a U.S. consulate or, in the case of an alien already in the United States, by applying to the Vermont Service Center for a change of status on Form I-129. The following supporting documents must also be submitted with the application:

• Proof the alien is a national of the Commonwealth of Australia;
• Letter from the U.S. employer describing the specialty occupation, the anticipated length of stay and the arrangements for remuneration;
• Evidence the alien has a U.S. bachelor's degree or higher (or its foreign equivalent) in the specific specialty; *Evidence the alien meets any other licensure or occupational requirements; and
• A U.S. Department of Labor-issued certified labor condition application.

E-3 visa holders are admitted into the United States for up to two years, like E-1 and E-2 visa holders, and the status can be extended indefinitely in two-year increments.

The E-3 visa is not a dual intent visa like the H-1B and L-1, but it does not have a foreign residence requirement. While applicants need to attest that they intend to depart the United States when their status terminates, they do not need to show they are maintaining a residence in their home country.

The spouse and children of an E-3 visa holder are allowed derivative E-3 nonimmigrant status irrespective of their nationality. Such spouses and children do not count against the 10,500 cap. Also, spouses and children of E-3 visa holders are entitled to work authorization by applying on Form I-765.