Tag Archives: e-3

E-3 Visas for Self Employed or Founding a Company

The E3 visa which began in 2005 has only been increasing in demand over the years as a way for Australian citizen professionals to uniquely access the US labor market. With its own separate cap of 10,000 new annual visas, lower fees and an ability to renew indefinitely (in theory) the 2 year period visas, it has proved attractive to employers and Aussies alike.

A question that has often been asked on this site and the numerous other articles we have written over the years on all things E-3 visa, is whether it is possible to found a company or be self employed under this visa category?

The general answer we have given over the years in an ‘uncertain no’ or more aptly a ‘with great difficulty’. The main reason we have said this is that the law, like that for its H-1B visa counterpart, is written with professional employment in mind. So while no explicitly denying the ability to found a company or self employment, terms that would imply an employer-employee relationship and requirements around the soundness of the employing company’s operational history make things more challenging.

In practice this is what has played out with the majority of anecdotal stories from people showing them being denied when trying or having to jump through so many hoops to make it happen, they have given up and pursued the employee path.

Now in more recent years it seems like some have found a way to make it work. Particularly in the technology sector and with Australian companies like Atlassian recently going public on the New York Stock Exchange, the ability for the enterprising Australian entrepreneur combined with the US consular and USCIS interpretation of the law has meant some have succeeded. That said it is not easy but here is some of the major items that anyone would have to take care of if they want a chance of making it work.

1. A US incorporated entity needs to be setup and ideally with either/or; 1 year of operating history, legitimate and credentialed US based board of directors, ownership or management, be well funded and have a US office address and phone number. This could be a LLC or C-Corp but the general recommendation would be a C-Corp (equivalent to a Pty. Ltd. or private company setup in Australia)

2. That the company has all the official registration numbers like FEIN to ensure it is tax compliant and other registrations relevant to its area of operations

3. If you are the (sole or one of few) employees, even if the CEO, that a clear process is evident for you to be able to be terminated which is why the US based ownership or board of directors becomes critical.

4. The usual E-3 visa stipulations of non dual-intent and proving that you will return home, specialty occupation, bachelor’s degree minimum requirements, prevailing wage, etc. all still apply

5. Paying the E-3 visa application fee of $205 USD or $276.75 AUD (as at March 1, 2017) and likely having to do first in person consular interview at a US consulate in Australia in Melbourne, Sydney or Perth (some cases of doing it in Canada, UK, Mexico, etc. first time have succeeded)

It is important to note if you trying to transfer operations from an existing Australian entity or business to be aware of the tax implications as well as the likely relatively little regard that business history will matter given we are talking about small companies and revenues.

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Location of Foreign H-1B, E-3 & Green Card Workers

The office of Foreign Labor Certification is part of the US Department of Labor and the source a good proportion of Employers use when sponsoring Green Card PERM Applications under EB-1, EB-2 or EB-3 or non-immigrant visas like H-1B, E-3 and H-2B. This is for the purposes of the Prevailing Wage portion of the application which specifies the role under which the foreign is being considered and that it meets all necessary requirements. The data covers the full year of 2011.

Now while this is not the only official source for Prevailing Wage determination it is a significant source and thus provides great direction data as to where in the US and what types of classifications are most popular. Thus you can see where most foreigners are working around the US (and potentially what areas are most conducive and/or competitive for foreigners to work for US visa employer sponsors) as well as what classifications are most popular.

Below is a full table and we will highlight some of the major points to note in summary. It is important to note as to why you see far more Green Card certifications below (i.e. PERM) vs. H-1B or E-3 work visa certification requests is because the annual cap quotas on work visa are far more restrictive and the Green Card certification can be done at any time, however in most cases under current law it will be many, many years before the foreigner is eligible.

  • California has 21% of all foreign workers and 24% of the Green Card Applicants
  • Texas has the most non-immmigrant workers under H-1B and E-3 visa
  • The Top 5 States (CA, NY, TX, NJ, FL) have about 50% of all foreign workers
  • New Jersey is only the 11st biggest state by population in US but had 4th most foreign works
  • Puerto Rico, a US territory, has more foreign works than 4 actual US States (MT, HI, AK, WY)
STATE Total PERM H-1B/E3 H-2B
All 97,541 80,041 12,879 4,621
California 19,774 18,563 1,076 135
New York 8,912 7,933 652 327
Texas 8,491 6,967 1,079 445
New Jersey 6,279 5,933 197 149
Florida 4,908 3,567 919 422
Illinois 4,693 3,632 1,014 47
Washington 3,863 3,550 273 40
Virginia 3,719 3,226 359 134
Massachusetts 3,614 2,886 378 350
Georgia 2,929 2,372 508 49
Michigan 2,859 2,185 557 117
Maryland 2,729 1,855 750 124
Pennsylvania 2,547 2,094 254 199
North Carolina 1,981 1,275 588 118
Ohio 1,850 1,451 316 83
Connecticut 1,433 1,020 379 34
Arizona 1,303 950 260 93
Indiana 1,064 633 405 26
Colorado 970 703 107 160
Missouri 936 654 193 89
Minnesota 875 713 124 38
Wisconsin 791 569 210 12
DC 770 630 137 3
Kansas 710 349 332 29
Tennessee 686 492 172 22
Oregon 683 551 122 10
Louisiana 645 332 102 211
Delaware 567 508 19 40
South Carolina 558 356 131 71
Alabama 549 350 130 69
Kentucky 492 328 86 78
Iowa 480 388 74 18
Utah 409 261 65 83
Oklahoma 389 298 26 65
Arkansas 370 268 68 34
Mississippi 342 133 161 48
Idaho 329 121 162 46
Maine 298 88 23 187
Nevada 291 240 39 12
Vermont 280 254 1 25
Nebraska 266 215 29 22
New Hampshire 250 192 29 29
New Mexico 236 172 43 21
South Dakota 218 65 66 87
North Dakota 202 105 59 38
West Virginia 181 111 59 11
Rhode Island 165 133 9 23
Puerto Rico 137 82 50 5
Hawaii 114 97 15 2
Alaska 98 37 11 50
Wyoming 98 32 14 52
Montana 78 33 17 28
Guam 76 73 3 0
Nthn Mariana Isl. 45 9 26 10
Virgin Islands 9 7 1 1
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