Tag Archives: e3 application

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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E-3 Visa Annual Quota & History

The E-3 visa officially began on October 1, 2005 and a subsequent and separate Act passed by US Congress in 2005 following the AUSFTA (Australia & United States Free Trade Agreement) during that year. The idea behind the E-3 visa was that Australians now had a secondary route to work professionally in the US outside the long standing route of the H-1B visa which is available to all foreign nationals to the US and has an annual cap of 85,000. Given the H-1B visa is global it is of course far more competitive sometimes running out in a matter of days from the opening of application acceptance.

The E-3 visa had a separate annual cap of 10,500 annually (about 12% of the H-1B visa cap which was seen as very generous) and also had many other lucrative differences to the H-1B visa including;

  • Only available to Australian citizens
  • No Employer fees (vs. thousands for the H-1B visa)
  • No need for an application petition to the USCIS (United States Custom & Immigration Service)
  • Ability for a spouse of the E-3 visa holder (regardless of nationality) to also work in the US
  • Ability to apply for the visa at any time of the year (i.e. season is always open)
  • Is for 2 years but renewable indefinitely
At the time many Australians rejoiced thinking that the ability to work in the US suddenly became a whole lot easier. In some ways that was true with Australia now second to probably Canadian citizens via the TN visawith access ease to working in the US. However a fundamental misunderstanding by both the Howard Government and thus Media and General Public as to how the US Immigration system worked ensued and thus a lot of misinformation spread.While the above  advantages are certainly beneficial the mechanics of finding and getting a job, having an employer agree to sponsor, having to do a US consulate interview and otherwise be a party to the US Immigration system (or mess of a system) still remained. Unlike the UK where many more Australian professionals head to work;

  • You have to have an employer and job offer prior to being able to apply for the E-3 Visa
  • You have to go through a US Consulate Interview
  • During that interview you have to demonstrate strong ties to Australia (the E-3 visa is NOT a Green Card)
  • The rate of pay has to equal or more to the average wage for that role in that city where you plan to work
  • The job you apply to has to have a bachelor’s degree as a minimum criteria and be considered a specialty occupation
  • You must either have a relevant bachelor’s degree or enough relevant work experience to equate a US bachelor’s degree to the job to which you are applying
  • You can’t immediately start working once a job offer is made as you need have your E-3 visa approval first
  • It is not easy to transfer to a new job under the E-3 visa

Given all of that the table below shows the amount of used and unused E-3 visas over the last few years

YEAR E3 Visas Issued Unused E-3 Visas
FY2006 1,918 8,582
FY2007 2,572 7,928
FY2008 2,961 7,539
FY2009 2,191 8,309
FY2010 2,175 8,325

As is immediately evident about 75-80% on average of the E-3 visas each US Immigration year have not been used up (if unused they do NOT get added to the following year’s quota). In fact in the last couple of years the E-3 visa numbers have declined significantly although it should be noted that if you compare it to the H-1B visa during those years there was even a very slow takeup of those visas b/c of the Recessions and slow recovery in the US.

Some Australians still opt for the H-1B visa route mainly for a couple of reasons but in the current year and the year of 2005 (immediately prior the E-3 visa going live) this has only number a little over 500 of that 85,000 total (about 0.6% of the global total);

  • H-1B period is for 3 years so requires less renewal
  • H-1B visa allows a portability provision making it easier to switch employers
  • H-1B visa is known as a explicit dual intent visa making it more smooth for Green Card sponsorship and future renewals

Ultimately the E-3 visa is a lucrative option for Australians and with the Irish wanting to get their hands on the E-3 visa, it may become more competitive in the not too distant future. However be under no illusions that it is not an easy ride just a slightly easier ride with greater options than before. We have many resources on here to help you find a job, prepare for a US job interview, create a US style resume, explain the E-3 visa to a prospective employer, what a US Consulate interview is like and much more.

Cj

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