E-3 – Australian Nationals Employeed in a Speciality Occupation Visa

Australian nationals coming to the United States solely to perform services in a specialty
occupation may apply for an E-3 visa. The E-3 visa will prove highly useful for Australian
nationals as they will no longer need to wait in the queue for an H-1B “number,” and will
benefit from the flexibility of this new hybrid visa.  In order to qualify for an E-3 visa, the principal applicant must be a national of Australia.
However, the spouse and children do not need to be Australian nationals to join the principal
visa holder in the United States. Secondly, to qualify for E-3 status, the individual must be
coming to the United States to perform services in a specialty occupation.  The term “specialty occupation” means an occupation that requires the theoretical and practical application of
a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree
in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the
United States. The definition is the same as the Immigration and Nationality Act definition of
an H-1B “specialty occupation.”

The E-3 visa has several key advantages over the H-1B visa. First, there are 10,500 visa
numbers reserved for E-3 visa holders each year, which are not available to any other
nationals seeking to enter the United States to perform services in a specialty occupation. 
Secondly, E-3 visa holders may renew their E-3 status indefinitely, and are not subject to the six-year cap that limits H-1B visa holders’ stay in the United States. Additionally, the spouse of a qualified E-3 nonimmigrant may, upon admission to the United States, apply for an employment authorization document, which an employer could use to verify the spouse’s employment eligibility. Such spousal employment may be in a position other than a specialty occupation.  Lastly, E-3 visa holders who are outside the United States may apply for an E-3 visa directly at a U.S. Consulate or Embassy without first receiving approval from the United
States Citizenship and Immigration Services (USCIS). This means that those individuals
outside the United States who successfully demonstrate the ability to meet the qualifications
for E-3 visa status may receive a visa in a matter of days, rather than waiting months for
USCIS approval before applying for the visa abroad. Individuals also may change their status
to E-3 from within the United States by applying directly with the USCIS.

Similar to the H-1B visa, employers wishing to retain the services of an Australian national
must file a labor condition application (LCA) with the Secretary of Labor as required under
the Immigration and Nationality Act Section 212(t)(1). As with H-1B LCA filings, this application 
requires the employer to assert that it will pay the employee at least 100% of the prevailing
wage for the position, that the position’s working conditions will not have an adverse effect
on similarly situated U.S. workers, and that no labor dispute or lockout exists at the place of employment.

Unfortunately, the E-3 visa does have a significant drawback in comparison to the H-1B visa.
The H-1B and L-1 visa categories allow a nonimmigrant to work temporarily in the United
States without maintaining a residence abroad that he or she does not intend to abandon. This
means that H-1B or L visa holders may have “dual intent” because they may pursue a green
card while in the United States as a nonimmigrant. Unfortunately, the E-3 visa for Australian specialty occupation workers is not specifically defined as a dual intent visa. Therefore, the
E-3 must intend to depart upon the termination of E-3 status. In practice, this may mean that
the E-3 would be wise to change to a dual intent status such as H-1B prior to commencing the
green card process.

Copyright © 2009 Law Offices of Melissa Harms All rights reserved.

The above discussion is provided for informational purposes only and is not intended as legal advice nor does it create an
attorney-client relationship. Individuals should visit a licensed attorney to evaluate the legal circumstances surrounding their
situation and to receive appropriate legal advice.