E3 Visa Differences to the H1B Visa

So after not writing to much about the E3 Visa in recent times, I thought I would do a brief post on the differences between the E3 visa and the H1B visa. The main reason for this post is to clear up a lot of the E3 Visa Myths and FAQs as well as be a response to a lot of the questions we get from everyone regarding the E3 visa itself.

1. The E3 visa is only for Australian citizens whereas the H1B visa is for citizens of virtually any country
The E3 visa was created a subsequent addon to US Immigration law f or the Australian-US Free Trade Agreement (AUSFTA) signed in 2005 allowing Australian citizens to more easily work in the US against the more strict and competitive process surround the H1B visa

2. The E3 visa is renewable every 2 years indefinitely as opposed to singular H1B instances which are renewable once in 3 year increments
So in theory the E3 visa is able to renewed forever and many people now are on their 3rd E3 Visa Renewal. However just because you are doing a specialized occupation, at a previously approved company and have no violations of your visa terms, does not mean you will automatically be eligible for E3 visa renewal as that is up to the USCIS or US Consulate assessing your case. In most cases you should be fine but due to the non dual-intent provision of the E3 visa and maintaining home residency, sometimes arbitrarily it can be a grey area.

3. The E3 visa has no Government mandated application costs and only requires a free filing to the US Department of Labor where as the H1B visa requires a petition to be submitted to the USCIS during a specified period and has associated costs.
So the H1B visa has many costs as opposed to the E3 visa (not even accounting for optional H1B lawyer fees or E3 Visa lawyer fees). The E3 visa requires the sponsor company to file Form ETA-9035(e) to the Department of Labor which is a free filing to get an approved Labor Condition Application (LCA) which the candidate needs to take to their US Consulate Interview to get the E3 visa stamp in the passport.
(NB: the only time a USCIS filing is required for a new E3 visa application, is when there is a transfer from another visa like the F1 Visa or J1 visa)


4. The E3-D Dependent Visa for spouses allows the spouse to work in the US
Unlike the H4 spouse visa for the H1B visa, the E3D Visa after filing for appropriate work authorization following entry into the US. It should also be noted that this working privilege does not extend to E3D dependent visa children under 21. The E3D visa holder does NOT need to be an Australian citizen.

5. The E3 visa is not specifically a dual intent visa
Unlike the H1B visa which allows for dual intent, at your E3 Visa US Consulate Interview, the candidate must prove they intend to leave the US at the end of their visa period and thus must prove significant ties to the home country. Now mistakenly people believe that this also means you can’t have your company sponsor you for a green card while on the E3 visa. This is NOT true as this is possible as the law states;

“An application for initial admission, change of status or extension of stay in E-3 classification, however, may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.”

However because of the dual intent provision, risks still may apply for a denial of your E3 visa when renewing with a pending Permanent Residency case. Many people have got Green Cards while on the E3 visa successfully so it certainly can and has been done.

6. The E3 visa does not have the portability provision explicitly stated
The H1B visa regulations has a provision that when candidates want to transfer employers, they can start working at their new employer while that application is still pending at the USCIS. This helps overcome the 10 day rule that an H1B visa (and indeed E3 visa) candidate is not allowed to be out of work in the US. For the E3 visa this portability provision is not explicitly stated, even though the E3 visa is supposed to follow the H1B rules where it is not written. However most people at the USCIS and indeed most US Immigration attorneys seem to interpret this as there being no portability provision for the E3 visa. Therefore because an application with the USCIS takes longer than 10 days to process, E3 visa candidates wanting to transfer employers either have to do it in advance while staying at their current employer or have to leave the US and get a new E3 visa for that new employer. (It should be noted the some E3 visa candidates have been told differently by the USCIS and others and have successfully started working at a new employer while their application was pending with no follow on issues)

CJ

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29 thoughts on “E3 Visa Differences to the H1B Visa

  1. Hi
    thanks for this great site. I could be wrong but I thought another difference with the visas was with the H1 the employer has to demonstrate that they have advertised for a US worker and they could not get a US worker – hence the need for a foreign worker. I thought with the E3 visa they did not have to prove they had first advertised for a local worker and couldnt get one. I am curious as my brother is applying for one there and thats what my research tells me. With the recession I am wondering maybe I am wrong on this count?

  2. Hi WCH,
    Yes in theory that is a requirement of the H1B visa but in practice is more straightforward than documented so no real difference with the E3 visa here. It only has to be more fully demonstrated when an employer petitions for an immigrant’s green card application that the job has been previously advertised with no suitable candidates found.
    Cj

  3. Hi – a quick question. I’ve got a Bachelor of Arts (History)/Laws degree and previously worked as a lawyer. I no longer practice law but am currently working in the marketing team for a law firm in Australia. I am looking to get a similar type of job in the US. Does it matter that I don’t have a marketing degree? I note that many of the jobs I am applying for only require that you have a bachelors degree. I guess the crux of my question is – when applying for the visa, what do they look at when they are looking at your degree and the position you’ve been offered? i.e. does the job description simply have to state that a bachelor’s degree is required or must it specify that the degree required is the one you have?

  4. The terminology used in a US Consulate FAQ indicates there must be a correlation between the degree and the work performed under the E3 visa. Specifically, “The attainment of a bachelor’s or higher degree in the SPECIFIC SPECIALTY …”. Hope this helps

  5. Hi, I was wondering if you could tell me if new businesses that are established legally but still in their startup phase can sponsor me for an E3 visa. Or does the sponsoring employer need to have been in business for a specified period of time?

    Thank you.

  6. Hi, I just graduated from NEIU with a BSW I am an Australian citizen who has been on a F1 visa for the past 5 years here in Chicago.
    The question I want to ask is can I apply for a change of status from F1 to E3 ( I currently hold an EAD Card valid for 1 year and I have the opportunity to get a job here in the US.
    Do I have to go home first to apply for the E3 Visa or can I do it here…

  7. Hi there! I found this document online which seems to state that E3 applicants (or more precisely their bosses) do need to pay some extra fees ie. the fraud detection fee of $500 and another of $750/$1500. This is from a .gov website and since printing off my LCA I see these fees are listed in the supplemental forms. So it seems like these fees do apply to Australians trying to get their E3 now? http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62Y.pdf

  8. B Boo those fees only apply for H-1B visa applications. The E-3 visa holder has to pay the I-129 $325 fee if they are transferring within the US from another non immigrant visa.
    Cj

  9. I am Australian living in NYC who was made a job offer and was just about to embark on the E3 application process, however I was told at the last minute that there was a quota in the company for the number of foreigners allowed (as a ratio to Americans) and I would have put that ratio out (as the firm already had a number of foreigners apparently who were under H1B and E3 visas). I have been searching for the part of US legislation that is applicable to this. I have been told by another Australian working in the USA that this ‘quota ruling’ only applies to H1B and not to E3 visas. Does anyone know more information about this??

  10. Travis your friend is half correct but also half misinformed. In the general quota laws it is only the H-1B visa that is mentioned (i.e. http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62C.pdf). However in general US Department of Labor laws the E-3 visa is grouped with the H-1B visa (i.e. http://www.dol.gov/compliance/guide/h1b.htm) as they are essentially the same functionally as work visas for non-immigrants. So that combined with the fact that under the proposed US Immigration reform the penalties for being too foreign worker reliant are more severe and one of the points that Republicans and Democrats actually agree on means I can understand why your prospective employer is very cautious and counting any foreign non-immigrant visa holder (i.e. both H-1B and E-3) when it comes to the proportion of foreigners as the fees for them to hire then a future H-1B visa worker become much higher under the current rules and may even be prohibited under new rules.
    Good Luck,
    Cj

  11. Hi there, I’m an Australian and I have been offered a job at a university in the US overseeing both rugby programs from a coaching and administration standpoint with a “Director of Rugby” as a title. I have a Bachelor Of Commerce & an MBA and have played coached for the last 20 years. The immigration lawyer I’m dealing with doesn’t believe that this is grounds for a “specialty occupation” as there is not exactly a plethora of decently paid coaching positions in the US and thus they are deciding to take the H1-B route, which I know can be very timely. Can anyone advise on the best course of action? This would be greatly appreciated. Cheers, Art.

  12. Art I am not sure who your Immigration lawyer is but they clearly have no idea what specialty occupation means in relation to US Immigration. With a few exceptions if a job is acceptable for the H-1B visa it is for the E-3 visa and vice versa. Whether your particular job is relevant for either visa is hard to say and will probably be subjective but best info is here; https://visacoach.org/2009/05/22/e3-visa-the-bachelors-degree-specialty-occupation-conditions/. The H-1B visa doesn’t open again until April 1, 2014 and even if your application was accepted based on the expected over demand and then approved you wouldn’t be able to start work at the earliest till October 1, 2014. So the E-3 visa without those dates and cap type issues makes far more sense independent of cost savings in process.
    Cj

  13. Hi there,

    VERY HELPFUL SITE HERE!

    I was wondering if you could please expand on the requirement for an employer to prove that there was no suitable US candidates for the e3 visa? Ive read a few other comments you have made about it officially being a requirement but unofficially its never a problem.

    Its great if this is the case but is there any official link i can point them to to argue this point? Or rather, how do you suggest I remove this risk from the mind of a potential employer that has just effectively ceased talks with me on this basis?

    Cheers
    nick

  14. Hi,

    I did my Bachelors in Commerce and and my Masters in Information Technology here in Australia and I have been working here in Australia for past 5-6 years in the field of Information Technology .Would I be eligible for a e3 visa?

    Regards,

    Ravi

  15. Hi there, I am an Australian currently looking for work in the US in design and marketing. My question is largely around flexibility with the requirements for US work visas and if I am in fact eligible for one. I studied 3.5 years out of the total 4 of my B. Degree before leaving to focus more fully on a growing business I started (I essentially didn’t have the time for both). I now have 7 years experience in my field, have continued to continued to study in other capacities beyond university and am highly qualified at a senior level. Does the fact that I did not complete my B. degree make me ineligible for an E3 visa, and if so is there something I can do to fix this? Any help would be great

  16. Hi
    Thanks for a terrific website!
    Im am Australia and I am living in Toronto Canada on a 2 year working VISA, working for an Australian based company, with a Canadian subsidiary we are looking at starting an office in the US. To get an E-3 VISA do we need to start a US Subsidiary arm of the company, to sponsor the move or can it be done via the Canada or Australian office..
    I want to get the kids settled in school in september 2015 so I am after the quickest possible options.
    thanks for you help

  17. Hi,
    I am an Australian citizen, and I am looking for a job in US. I am in the process of completing my Ph.D.and need to convince some one to offer me a job so that i can apply for an E3 Visa.
    I am planning to migrate to US and apply for a green card? which is the best way to go?
    Get E3 and get a green card? or try and get H1B and get a green card

  18. Hi Chaandramouli,
    You can’t just apply for a Green Card as if you get into the US originally into the US by employer sponsorship then that employer has to petition for a Green Card for you and they may not want to for a host of reasons including time of application process, expensive costs, risk to then losing you as an employee, waiting to see if you are good employee first, etc. Additionally your work visa should be a dual intent visa as well technically before it is allowed to be done.
    An E-3 visa is technically not a dual intent visa while the H-1B visa is a dual intent visa so it is allowed explicitly. The E-3 visa is in a grey area b/c unlike the H-1B visa it is not explicitly stated to be a dual intent visa, it is also not explicitly forbidden like it is with the J-1 visa for F-1 visa.
    Cj

  19. Dear CJ

    I am currently on E3 working on a full time. Since job is not keeping my busy i am thinking of taking up one more job with a new concurrent E3 visa.

    1. Can I work on 2 jobs with concurrent visa?
    2. Does it need to be 1 FT/1PT or 2 FT okay?
    3. Are there any chances to get visa rejected?

    Cheers
    RM

  20. Hello,
    I am on an E3 Visa and I have just been laid off. Do you know if the same rules apply to the E3 as the H1B Visa where non competes are against regulation? I can see they don’t apply to the H1B and have heard they don’t apply to the E3 but I can’t find anything online to verify this.
    Thanks

  21. Hi Visa Coach, great site.

    I’m an Aussie living in Sydney with my American wife (we’ve been here 12 years.. got married in Colorado back in 2007). We want to live in the States for a while so have begun my green card process by filing a 1-130 petition. Given that could take 6-12 months, I’ve spent the past month looking for work in the States in the hope I could be sponsored on an E3 visa.

    I’m now at the point where I’m close to receiving a job offer, and this particular company has plenty of experience offering Australians jobs via sponsorship. Is this ‘dual intent’ rule going to prevent me from being approved for an E3?

    Is it a case of, should I receive the job offer, I cancel my I-130 petition? Would that do the trick? Or can the consulate staff be reasoned with… eg. the only reason I filed a I-130 was due to our desire to live in the USA for a while.

    We’ve still got our house here as proof we’re financially tied to Australia, and other assets.

    Many thanks for your help. This dual intent thing is crippling for people in our position.

  22. I’m wondering if you know: I’m currently on a b2, but have a case for an e3 pending. As my b2 expires in 7 days (April 17), must I leave by then, or is it possible to stay while my pending application is finalized? Essentially, I’m trying to minimize my waiting time out of the USA

  23. Hi there!

    I have been in the US on F1 student visa and am currently working as a nurse on my OPT (EAD) for 1 year. I want to apply for the E3 visa. I have a bachelors degree in nursing and work at a hospital. However, the hospital itself does not require you to have a bachelor’s degree (they also still take associates degrees, but then require employees to get their bachelors in 3-5years now). The hospital attorney seems to think I cannot apply for this visa because they do not require you to have a bachelors degree, even though I have one. Is this a problem? does the hospital have to require a bachelors degree for minimum entry?

    Thanks

  24. Hi, is it true that it’s easier to apply for green card if you have a H1 instead of a E3 visa? This is what my husband told me and for this reason i haven’t been able to work for 3 years now. Just checking that we sid the right thing . Thank you

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