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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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E3 Visa Process

We have so much on the E3 visa already at our main info page as well as our E3 Visa FAQ page which contains links to all major E3 visa resources on this site as well as some great tips and information.

So really this topic is already covered via the above resources but given the large amount of search volume from this query to our site more than anything else, along with many comments, we will do a brief post on the E3 visa process itself.

Step 1: Find an Employer willing to sponsor you
This is of course easier said than done but the crux of this is finding a US employer who is willing to hire you and thus sponsor your E3 Visa. The barrier to entry for this is at least less than the H-1B visa which has certain times of year associated to it, a very competitive fixed quota and large costs. However most employers will not hire someone without at least one face to face interview so there could be expense for you to achieve your goal. Note you can’t apply for your E3 visa as a new visa from within the US or transfer to it from the Visa Waiver Program. You can transfer to it from visa like the J1 Internship visa and F1 Student visa.

Step 2: Apply for Jobs At US Companies
I guess this is really interchangeable with Step 1 or indeed a subset of it. Given the important and uniqueness of this act I thought I would devote a paragraph to it. Of course for a foreigner on the other side of the earth to find a job in the US is some kind of effort and certainly requires some forward planning. Many people come to the US on the visas mentioned above like the J1 visa and F1 visa as a stepping stone to working in the US allowing them time to make contacts and attend interviews while under legal status. However many people do indeed do things like apply to jobs from Australia and then fly to the US and attend as many interviews as they can. Some good general tips are to have a US phone number on your application (i.e. via Skype), try and have a US mailing address if possible and mention visa status on their resume in explaining it to a potential employer. Of course from here the job interview and selection process is generally similar to what people may be used too but note that salary negotiations are a much bigger part of the US process and often begin right upfront. Finally ensure you understand the specialty occupation and bachelors degree provision.

Step 3: The Visa Application process
Once an employer has agreed to hire you and sponsor your E3 visa they need to file form ETA-9035(e) with the US Department of Labor. This is so they can received an approved Labor Condition Application (LCA). This is a free filing and can be done online. Essentially on this form includes details on the nature of the job, the nature of the company, a little on the candidate (i.e. you) and the salary. You should note that the salary has to meet the Department standard for the average salary for that type of role in that region of the country. You would take this document, along with an offer letter from the company to your US Consulate Interview for the E3 visa.

Step 4: The US Consulate Interview
From the link referenced above you can see a detailed account of the US Consulate interview for the E-3 visa. You can do this in other countries like Canada, UK, etc. but of course the most common tends to be at a Consulate in Australia. You should take as many supporting documents as possible including bank statements, asset ownership proof, copy of your degrees and any licenses that may be relevant to your role, etc. One of the things you need to demonstrate is the residence abroad condition. This is basically proof to the US that your ties to Australia are strong and that you intend to return home at the conclusion of your E3 visa period. The more prepared you are for this, the easier and quicker and less hassled it tends to be. You should note that you have to prepay the E3 Visa Application Fee at Australia Post prior to your interview.

So that in short is the E3 visa process but like I said read a lot of the other posts for in depth information and tips about particular aspects and how you can best navigate them.

Good Luck,
CJ

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