E-3 Visas Overview

The REAL ID Act of 2005 established a new non-immigrant visa category: “Reciprocal Visas for Nationals of Australia,” otherwise known as “E-3 Visas.”  There are 10,500 E-3 visas allotted annually to qualified individuals. 

Though the E-3 Visa is classified in the same category as E-1 (treaty trader) and E-2 (treaty investor) visas, E-3 visas share some similarities with H-1B Visas (workers in a specialty occupation).  Therefore, the E-3 Visa can be understood as a slight hybrid between the two categories, and the E-3 visa has unique traits such as:

• An E-3 candidate can work for any qualified U.S. employer – the hiring company does not have to be owned by Australian nationals;
• An individual in E-3 status can file for H-1B status; and
• An annual cap that is separate from the annual H-1B cap.
 
E-3 Visas are further explained below.

E-3 Visa Requirements and Filing Procedure

Only Australian nationals qualify for E-3 Visas.  The individual must be entering to the U.S. to engage in a “specialty occupation” (as defined by INA § 214(i)(1)). 

To apply, an individual should apply directly for a visa at the local U.S. consulate; no prior USCIS approval is needed.  There, the individual will have to present evidence supporting their E-3 application, including:

• Proof of Australian nationality;
• The individual will depart once their E-3 status expires (if the individual does not file for an extension);
• Evidence that the individual is coming to America to engage in a “specialty occupation” (as defined by INA § 214(i)(7));
• An employer’s signed copy of a Labor Condition Attestation that is certified by the Department of Labor;
• Documentation illustrating that the E-3 candidate shall be paid actual or prevailing wages that satisfy statutory requirements;
• The individual’s personal credentials that qualifies the individual for a “specialty occupation”, including academic background, specialized training, relevant job experience, and letters of recommendation; and
• An E-3 visa number assigned to the individual under INA § 214(g)(11)(B).

It is critical that an E-3 candidate presents a comprehensive, compelling case of why he or she qualifies for a “specialty occupation.”  Generally, E-3 classifications are valid for two 2 years, unless the Labor Condition Attestation expires before that period.  Though E-3 Visas use the same “specialty occupation” standard as H-1B visas, E-3 visa candidates are not subject to the annual H-1B caps or surcharges.

An E-3 candidate’s spouse and children also qualify for E-3 classification.  Unlike the primary E-3 applicant, note that the E-3 candidate’s spouse and children do not have to be Australian nationals, nor are they subject to the annual E-3 cap.  Finally, the E-3 candidate’s spouse may also apply for U.S. work authorization.