Mark A Ivener, A Law Corporation

E-3 Visas for Australian Specialty Occupations

Who is Eligible?

An Australian citizen who seeks temporary entry as a professional may be admitted to the United States under Section 501 of the Real ID Act of 2005, enacted in 2005, which amends the Immigration and Nationality Act to include a new category of E treaty visas, the E-3 Nonimmigrant Visa for Australians in Specialty Occupations. The new law, which has a quota of 10,500 nationals of the Commonwealth of Australia plus their spouses and dependent children, will largely take Australians out of the H-1B quota and offer them a visa that is similar, but more flexible, than the H-1B. It also has some of the elements of an E treaty visa and can be viewed as a hybrid that should be highly useful to Australian nationals seeking work in the US. The E-3 visa is available to Australian nationals who enter the U.S. to work in a “specialty occupation.” A “specialty occupation” is defined similarly to the definition used for H-1B professionals. The statutory definition of “specialty occupation” is “…an occupation that requires: theoretical and practical application of a body of specialized knowledge; and 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 United States.” Identical to the occupations allowed under the H-1B, examples of specialty occupations include lawyers, physicians, engineers, accountants, etc. In addition, the E-3 eligibility requirements (like the H-1B qualifications), require an individual to have at least a baccalaureate degree or appropriate license demonstrating status as a “professional,” which is generally defined as a person with a minimum of a bachelor’s degree where the job requires this degree as its minimum entry-level requirement. Unless otherwise specified, a bachelor’s degree is the minimum requirement for professionals. E-3 visa holders can work for any U.S. employer, and the employer does not have to be majority-owned by citizens of their home country.

How To Apply

Filing for an E-3 visa must be made at U.S. Embassy or Consulate changes of status or extensions may be made on Form I-129 at the USCIS, similar to an H-1B petition. The application fee (see Appendix) is two-part: a fee must be paid via the Australia Post, and receipt of such payment must be presented to the Consulate at the time of the prospective nonimmigrant visa holder’s interview, and another fee must be paid directly to the Consulate. Prospective applicants should check with the local U.S. Consulate for the specific rules on fees and payment thereof. As this is a new visa, approval times are not well known, but it is generally assumed that approval of the visa can be obtained within a week of the applicant’s interview at the Consulate. The applicant is instructed to take a self-addressed envelope along with his or her documentation to his or her interview, and the Consulate will then send the approved visa and documentation back to the applicant. It is advisable not to make any formal, finalized plans for a travel date to the United States until the applicant receives official approval for his or her visa from the Consulate.

Documentation Requirements

To demonstrate business activity at a professional level, the applicant must submit documentation in the form of a job offer letter from the prospective employer in the United States, as well as supporting documents such as licenses, diplomas, degrees, certificates, or membership in professional organizations. The following documentary evidence must be submitted in connection with an application for an E-3 visa:

  1. A certified Form ETA 9035, clearly annotated as “E-3 – Australia – to be processed.” (Note: DOL is currently updating the Form ETA 9035 to include an option check box for E-3 classification, which will eliminate the need for the interim handwritten annotation). The form may be mailed or submitted online.
  2. Evidence of 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 and that the alien will be paid the actual or prevailing wage referred to in INA 212(t)(1). A certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree could be used to satisfy the “qualifying credentials” requirement. Likewise, a certified copy of a U.S. baccalaureate or higher degree, as required by the specialty occupation, would meet the minimum evidentiary standard.
  3. In the absence of an academic or other qualifying credential(s), evidence of education and experience that is equivalent to the required U.S. degree.
  4. Evidence establishing that the applicant’s stay in the United States will be temporary.
  5. A certified copy of any required license or other official permission to practice the occupation in the state of intended employment if so required or, where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that the alien will be obtaining the required license within a reasonable time after admission.
  6. Evidence of payment of the Machine Readable Visa (MRV) Fee, also known as the application fee.

Duration of Visa

An E-3 visa is granted for up to two years. At the end of each two-year period, the Australian citizen may reapply for another E-3 visa. At present, there is no maximum number of times that an Australian citizen may renew his or her E-3 visa.

Status of Spouse and Minor Children

An Australian spouse or unmarried minor child of an E-3 visa holder is entitled to an E-3 classification for the same length of stay as the principal. A visa from a U.S. Consulate is required when applying for admission, whether for an Australian or non-Australian citizen. Unlike most employment-based visas, with the E-3, the spouse and unmarried minor children can accept employment in the United States, after obtaining a work authorization document.