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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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