The E-3 was created by Congress in 2005 as a result of the Australian-United States Free Trade Agreement (AUSFTA), although it is not actually a part of AUSFTA. Unlike the E-1 and E-2, the E-3 is not for Treaty Traders or Investors, but rather for Australian citizens coming to work for a U.S. employer in a specialty occupation.
Requirements FOR THE E-3
In order to be eligible for E-3 the position must be a specialty occupation. The regulations define a “specialty occupation” as one requiring the theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. This means the job must require at least a bachelor’s degree. The individual must have the required degree or its equivalent.
The beneficiary (future employee) must be an Australian citizen.
The employer must pay the higher of the prevailing wage or actual wage for the position.
The prevailing wage is set by the U.S. Department of Labor based on the requirements of the position and the geographical work location. If that wage is higher than the wage the employer normally pays for the position, the employer must pay the prevailing wage. Conversely, if the employer normally pays more than the prevailing wage, it must pay the higher actual wage to the E-3 employee.
The employer has several other obligations when sponsoring an employee for an E-3. The employer is required:
- to post a notice informing other employees that it is hiring an E-3 employee;
- to file a labor condition application with the U.S. Department of Labor
- to maintain a file of specific documents related to the E-3, called a public-access file;
- make certain attestations regarding treatment of similarly employed individuals;
- and to pay the E-3 employee’s return transportation home if the employer ends the employment relationship before the expiration of the E-3.
PROCESS AND TIMING
If an individual who has been offered a position by a U.S. employer is outside the U.S. then the employer completes the appropriate documentation and sends it to the individual who applies for an E-3 visa at a U.S. consulate abroad. The individual then uses the visa to travel to the U.S. and upon entry with the E-3 visa will hold E-3 status and be eligible to work for the employer. Normal preparation time for E-3 documentation is 2-3 weeks. The remainder of the time largely depends on when the individual can get a visa appointment at the consulate.
If an individual who has been offered a position by a U.S. employer is physically present in the U.S. in lawful status, then the employer may petition the USCIS for an E-3 for the individual and to change or extend the individual’s status. It normally takes approximately 4-5 weeks to prepare and file an E-3 petition. This is because both employer and the beneficiary must submit information and because the process to prepare the petition is stepwise, by law. Once filed with the USCIS, the time to adjudicate the petition varies greatly. Under the Trump administration, processing time for adjudications has slowed tremendously sometimes going well beyond 6 months. Additionally, E-3 petitions are not eligible for premium processing.
FREQUENTLY ASKED QUESTIONS ABOUT THE E-3
What are the Advantages of having an E-3?
Those with E-3 status:
Can travel freely in and out of the U.S.
Can renew the E-3 indefinitely.
May bring dependents to the U.S. and spouses are eligible to obtain work authorization.
It is fairly easy to obtain at a U.S. consulate in Australia provided the requirements are met.
What are the Disadvantages of having an E-3?
It is a status of non-immigrant intent so if someone with E-3 status is interested in permanent residence she or he should seek counsel to ensure compliance with the E-3.
It is only valid for two years at a time.
It is prone to errors by USCBP officers who often assign incorrect periods of stay when an E-3 visa holder enters the U.S.