Tag Archives: e3 visa

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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President Trump & US Immigration

It has been a while since I have posted both b/c I thought I had most things covered in the areas that I had some level of expertise and experience and also because things just get busy. However our new excuse for a President has changed a lot of things all for the worse, no matter which side of the immigration spectrum you fall on.

So if you are a tourist on visa waiver program (ESTA), if you are current non-immigrant worker on the E-3 or H-1B visa, if you are an undocumented immigrant, a refugee, a permanent resident with a Green Card, a student or work and travel person on J-1 visa, someone looking to marry a US citizen or even an immigrant US citizen who is from a certain group of countries, your life has been immediately made either worse or has the strong potential to be very soon.

The main reason we are in this predicament is largely because of racism, ignorance and apathy. This is not just limited to the bigots or the folks that are selfish and just care about themselves over basic human dignity and rights of others, it is also includes many progressive liberals who otherwise are pro-immigration and helping the downtrodden. This group who stayed home or voted 3rd party on election day 2016 are just as much to blame for the US Immigration mess we are all in as the bigots.

Hell even native born US citizens who like to travel or happen to have family who live in certain countries or have friends or family who just like to travel and explore the world are also at risk.

So what are all these changes?

Well largely these have come about with vague (although strongly worded) executive orders that put moratoriums on entry for certain nationals, likely make the assessment of non-immigrant visa petitions of the upcoming H-1B season far more strict and prejudiced with interpretations and even will potentially add fees and interviews to tourists from countries like the UK and Australia.

The reason why I say vague is because these are not laws (yet) but interpretations that could result in different decision making and other actions from rank and file USCIS officials at the border, state department employees in consulates and embassies around the world and thousands of workers across immigration centers around the US. I am sure the Diversity Visa Lottery (aka the Green Card Lottery) will be targeted as well.

Ultimately it could mean some people may face no effect but that a permanent resident returning home from a vacation home to family (or worse traveling b/c of a loved one’s death) is barred from boarding their flight home back to US or blocked / interrogated at the border. USCIS officials at the best of times are known in pockets to be very heavy handed to people entering the country and the Trump administration has now given those folks air cover to act like Nazi officers.

As more concrete information comes to add and real experiences from the field, I will likely now post more so stay tuned. In the meantime, stand up with your fellow rational US citizens and fight back in whatever way makes sense in your circumstance. The tyranny of Trump does not just have the potential to destroy the US but take the world with it. This is a pivotal moment in history and we all have a role to rise up as this young man did on the amazing day of Women’s Marches around the world.

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