What is the E3 Visa?

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If you go to many other US Visa sites or forums and people talk about the E3 visa, this question is the only question that really seems to get answered. Many people I see get frustrated because they ask questions related to the many other visa posts I have in this blog but all people give them are the visa facts.

Well for the first time, I am going to go through the basic facts of the E3 Visa using the embassy FAQ site as a basis for my post.

  • The E3 Visa is a visa exclusively for Australian citizens allowing them to work in the US
  • Spouses and Dependent Children (usually under 21) do NOT need to be Australian citizens but the relationship must be a proven marriage between a male and female (the US does not recognize same-sex or common law relationships) They fall under the E3D Visa
  • You need to have a job offer from a US company prior to applying at the Consulate
  • You can NOT apply for a new E3 Visa from within the US
  • You can transfer from certain visas to the E3 Visa within the US but NOT from Tourist Status
  • There is nothing specifically stopping you going to the US to search for a job as a tourist, however you must leave the country to then apply for your visa
  • You can apply for your E3 visa from most Consulates and Embassies around the world but is always good to check with that particular Embassy first.
  • Within Australia you can apply from the Consulates in Melbourne, Perth or Sydney
  • E3 Visa is for applicants seeking employment in a specialty occupation.
  • A specialty occupation is one defined as required a specialized body of knowledge and the position itself requires a bachelor (or higher degree) degree equivalent at a minimum
  • If you have sufficient work experience in lieu of a bachelors degree and can prove it to the US consulate in the field of the job offer you possess then, that will be considered as well
  • Generally as Trade positions do not require bachelors degrees they are not considered suitable for this visa
  • The only petition required of the employer is to submit Form 9035/9035E to the Department of Labor to receive a Labor Condition Application (LCA) – at the time of writing this is still a free submission
  • The visa is valid for 2 years, and able to be renewed indefinitely for periods of 2 years as long as the job position is still valid and not considered permanent
  • There are 10,500 E3 Visas issued each year (this quota does not include extensions or spouses) and this quota has yet to be reached in any fiscal year (October – September)
  • E3 Visa holders must show they intend to return home when their visa expires
  • Spouses may work under the E3D visa and have to file Form I765 AFTER they enter the US to the USCIS (this can take up to 3 months to be approved)
  • You can enter the US 10 Days before and leave 10 Days after you start your job
  • The E3 visa is a multiple entry visa so as long as your passport and visa are current you can travel
  • You can change employers but your new employer must lodge a new LCA within 10 days
  • It usually takes 2-3 days within Australia for your visa to be issued back to you after your approval at the Consulate

What requirements and documents are needed for the application and Consulate Interview?– A job offer letter from the prospective United States-based employer

  • Electronic Visa Application Form (EVAF) DS-160, completed online (http://evisaforms.state.gov/) and printed out
  • Form ETA 9035, clearly annotated as “E-3 – Australia – to be processed,” or an ETA 9035E dated after January 4th, 2006, specified for E-3 Australia. This is the LCA Form
  • Your Degree or Proof of Equivalent work experience (often they don’t even look at this)
    • To Note: If your degree and higher-level qualifications are from an Australian institution, you do not usually need to provide certified copies or evidence of their U.S. equivalent, but please bring to your visa interview the original certificates, and if possible, transcripts for the course of study. If your qualification(s) are not from an Australian institution, 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, but you may prefer to wait until your visa interview to confirm whether this is necessary. You should take your original certificates and transcripts to your visa interview, and if it is also necessary to produce certified copies of certificates and evidence of U.S. equivalence, you can send these to the Consulate after the interview, although your visa will not be approved until this is received. Likewise, a certified copy of a U.S. baccalaureate or higher degree, as required by the specialty occupation, would meet the minimum evidentiary standard.
    • U.S. Regulations, 8 CFR 214.2(h)(4)(iii)(D), describes the kind and amount of experience which can be used to establish the equivalency of a university degree. As a guide, three years of professional experience may generally be used as a substitute for each year of university-level education. During their visa interviews, applicants for U.S. work visas should be prepared to provide documentation outlining their work history, education, and training. A consular officer will determine whether the educational and employment information provided meets the eligibility requirements for a U.S. visa.
  • Evidence establishing that the applicant’s stay in the United States will be temporary. (this could be bank accounts, mortgages, car/business    ownership, family ties)
  • A certified copy of any required license or other official permission to practice the occupation in the state of intended employment
  • Evidence of payment of the Machine Readable Visa (MRV) Fee, also known as the application fee. This is payable at Australia Post in Australia or if other embassy/consulate, their local procedure , and applicants should bring the  receipt to the interview as evidence of payment.

What Does An E-3 Visa Look Like?

In terms of eventually getting a Green Card there is nothing specifically precluding you from applying for one via your employer however technically the E-3 visa is not a dual intent visa like the H-1B visa. The actual regulations state;

“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.”

So this basically means they can’t deny an E-3 visa application just because you have an open Green Card application

I hope this all helps.

CJ

Do I Need A Lawyer For My E3 Visa Process?

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To continue my series as to whether you need a lawyer for your US visa process I will now focus on the E3 Visa.

The Process

I will let you be the judge firstly from how I will briefly describe the process, and then I will give you my own opinion.

In short once a company has agreed to sponsor you with a job offer, you have to file freely either electronically or by mail a form to the Department of Labor. This form is pretty simple to fill out and really just outlines the company, your role, your salary, etc. It is designed so that the Department of Labor determines that the company is legitimate, the job offer is legitimate and is within the visa parameters and also that you will be paid at minimum in accordance with the regulations. (this salry part needs to be the prevailing wage which is basically just at the least the same amount a US worker would get for doing the same job in the same city)

Once you have received this approved form, you can essentially take that, along with the ocmpany offer letter and your regular application forms to the US embassy or consulate for your interview. If there is a spouse or dependents involved they can fill out the relevant application forms as well to take to the consulate at this time.

Now in this process I described above do you think, an attorney was necessary?

You can probably gather from the tone of my language that I think an attorney is a waste of time and money.

The US Government even admit as much when they stated when this visa was conceived in 2005, that is was designed to be simple for both the employer and the applicant and without all the extra fees involved.

Look many companies will hire an attorney anyway as that is their policy. However if it is you who is dictating the process and whom has to make the decision then I would say unless you are completely incapable of anything like filling out a form and understanding basic language (which would make me wonder how you got your job offer in the first place) then say NO to lawyers.

Lawyers are expensive, even moreso in the US, and for something they could do in less than half a day’s work (similar work for you) will set you back at minimum $2,000 USD but probably more. I don’t know about you but I would rather keep that myself!

I will admit I did use a lawyer 2 years before I first got my E3 visa so I could understand the process and legal requirements around the US visa system better. However if there were resources on the Internet then I certainly wouldn’t have. Hey in your case you have this blog here for FREE to understand all that 🙂

In my case a lawyer was used by my company but that was completely their decision as I told them it wasn’t necessary and I know the lawyers (although very professional and friendly) found me slightly odd as they wanted to fill out my applications for me that I would take to the consulate. I said I would do that myself since it is easy to know my own name, address, past history, etc.

It was obvious that there was little legal stuff for them to do so they wanted to handle anything they could 🙂

Also to note the spousal and dependent applications, know as the E3D visa is very simple as it just depends on you having a valid E3 application

So again NO to lawyers for E3 if you are the one who are going to have to pay the lawyer’s bill!

The Counter Opinion

Many people will tell you that you do need an attorney for this process because of issues they have had mainly centered around 2 issues;

1. The nature of their job and their salary
2. The so called “no dual intent” part of the visa

With the first issue, yes there are many jobs that are not allowed but essentially I think many more are given the job you apply for must have a minimum criteria of requiring a bachelors degree. To note, this does not necessarily mean you need a bachelors degree as if you qualify as having enough practical work experience (and possibly other certifications) in this certain field that you can prove then you will be fine.

So this is a just a matter about having common sense and not putting down things like receptionist, janitorial, burger flipper in your application as job title and description. However the categories are so broad with business, finance, legal, marketing, medical, engineering, IT, Architecture, etc. that you could easily fit your job description under any one of those categories I am sure.

The salary part is just ensuring you are paid a decent wage (equivalent to what a US worker would get in the same situation in the same city). I am not sure why you would work for much less that what you deserve anyway but this again is just common sense for both you and the company to ensure they are not exploiting cheap foreign labor.

The second issue relates to the “no dual intent” aspect of the E3 visa which basically means that you should have ties to home and intend to return whenever your entire visa period is over. Now again you have to remember it is in law that this visa can be renewed/extended indefinitely and there is no limit to the amount of times you can apply for it. So already even though your status in the US will never be permanent, there is already a contradiction here unlike the H1B visa which states can only be renewed once for another 3 year period.

The second part to this is that additionally it states, the application or pending petition to any immigrant (thus permanent status) does not automatically disqualify you from having your visa extended, renewed or getting another one.

So say for example you are on a E3 visa and your company does sponsor you for a Green Card/Permanent Residency but that application is still pending and you need to re-apply or renew your current E3 Visa, you wont be automatically denied based on permanent residency application. Again this also seems to contradict the “no dual intent” condition.

I am aware of people who have done through the example above and are now on their Green Card.

So to sum up this second issue, if you have family in the US and no family in Australia and are applying for an E3 visa, don’t sell up your entire life in Australia (house, car, etc.), trasnfer all your money to the US and then tell your interview officer at the consulate about all this as what are they meant to think.

Of course never lie to your Interview officer as they will be aware of any family you have in the US from their checks but showing you have bank accounts with money here as well as explaining you have people ties and roots in the community should not be that hard.

There is nothing a lawyer can do for you about all this except explain this same thing to you and emphasize common sense to you in the interview as he/she can’t be there with you. Only difference being that a lawyer will charge you thousands of dollars for the pleasure!

I hope this helps answer your questions about the E3 Visa and Lawyers….

CJ