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E-3 Visas for Australian Citizens Working in Specialty Occupations

Written by Henry J. Chang
Last Updated July 10, 2009

When the REAL ID Act of 2005 was enacted, it established a new nonimmigrant category at INA §101(a)(15)(E)(iii); this new category is commonly referred to as the "E-3." Despite the fact that this category appears at INA §101(a)(15)(E)(iii), it has very little in common with the E-1 (treaty trader) and E-2 (treaty investor) nonimmigrant categories. The E-3 does not arise from a treaty provision and does not require equivalent benefits to United States workers in Australia. Also, while E-1 and E-2 employees may only work for U.S. companies whose owners also hold the same treaty nationality, any U.S. company may hire an E-3 nonimmigrant, regardless of the citizenship of its owners.

The E-3 category actually shares many similarities with the H-1B nonimmigrant classification. As in the case of H-1Bs, E-3 nonimmigrants are subject to the following requirements:

  1. They must be seeking admission to work in a specialty occupation (the meaning of the term "specialty occupation" is the same as used in H-1B cases);
  2. They must obtain a Labor Condition Application ("LCA") from the Department of Labor; and
  3. An E-3 visa number must have been allocated to them in the same manner as an H-1B, although they are subject to a separate pool of E-3 numbers [10,500 per fiscal year, not including spouses and children of E-3 principal aliens].

However, unlike H-1B nonimmigrants, prospective E-3 applicants do not require prior petition approval from United States Citizenship and Immigration Services ("USCIS"); instead, E-3s apply directly to a United States consular post in order to obtain an E-3 visa. In addition, E-3 visas are issued for two years initially but not beyond the validity period of the LCA; extensions of E-3 status are also permitted for two years at a time but not beyond the validity period of the LCA. Finally, unlike H-1B nonimmigrants, E-3 nonimmigrants are not subject to time limits; therefore, an E-3 may continue to extend his or her E-3 status indefinitely.

The relevant Department of State ("DOS") regulations relating to E-3 nonimmigrants appear at 22 CFR §41.51(c). According to this regulation, an E-3 visa applicant must establish that he or she qualifies under the provisions of INA §101(a)(15)(E)(iii) and that he or she:

  1. Possesses the nationality of the country statutorily designated for treaty aliens in specialty occupation status [Australia];
  2. Satisfies the requirements of INA §214(i)(1) and the corresponding regulations defining specialty occupation promulgated by the Department of Homeland Security;
  3. Presents to a consular officer a copy of the LCA signed by the employer and approved by the Department of Labor, and meeting the attestation requirements of INA §212(t)(1);
  4. Presents to a consular officer evidence of the alien's academic or other qualifying credentials as required under INA §214(i)(1), and a job offer letter or other documentation from the employer establishing that upon entry into the United States the applicant will be engaged in qualifying work in a specialty occupation, as defined in 22 CFR §41.51(c)(1)(ii), and that the alien will be paid the actual or prevailing wage referred to in INA §212(t)(1);
  5. Has a visa number allocated under INA §214(g)(11)(B) [10,500 per fiscal year, not including spouses and children of E-3 principal aliens]; and
  6. Intends to depart upon the termination of E-3 status.

The requirement that the E-3 nonimmigrant have an intention to depart is the same standard used in E-1 treaty trader and E-2 treaty investor cases. In such cases, the alien's expression of an unequivocal intent to return when the E-3 status ends is normally sufficient, in the absence of specific evidence that the alien's intent is to the contrary. In addition, an E-3 does not need to have a residence in a foreign country that the applicant does not intend to abandon; he or she may sell his or her residence and move all household effects to the United States. Finally, an E-3 may be a beneficiary of an immigrant visa petition filed on his or her behalf and still establish an intention to depart.

As in the case of E-1 and E-2, the spouse and children of an E-3 principal alien who are accompanying or following to join the principal alien are, if otherwise admissible, entitled to the same classification as the principal alien. A spouse or child of a principal E-3 treaty alien need not have the same nationality as the principal in order to be classifiable under the provisions of INA 101(a)(15)(E).

As in the case of E-1 and E-2 spouses, the spouses of E-3 principal aliens are entitled to seek open market work permits once they have entered the United States using their E-3 visas.
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