The E-3 visa is for nationals of the Commonwealth of Australia, who intend on entering the U.S. on a temporary basis to perform services in a “specialty occupation.” The visa is a nonimmigrant visa that combines elements of both the H-1B visa and the E treaty investor visa. The advantage of E-3 status is that it takes Australians out of the H-1B cap (which has a long queue and has been reached immediately upon eligibility in recent years).
A “specialty occupation” is an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.
The sponsoring employer must file a labor condition application with the Department of Labor (DOL) to demonstrate and attest that the employer will pay the higher of the prevailing wage or actual wage paid to other U.S. employees; that the employer is not interfering with or using the foreign national to defeat strikes or lock outs; that the employer will maintaining a public access file; and that the job has been publicly posted at the job site for the requisite period of time.
The E-3 petition can be filed with USCIS or with the U.S. Consulate in Australia.
The E-3 visa is not subject to the cap that exists for H-1B visas. The E-3 visa has a separate allotment of visas available not to exceed 10,500 per fiscal year. The spouse and children of the E-3 are allowed to accompany or follow to join the principal, and such spouses and children will not count against the 10,500 cap.
E-3 periods of stay are limited to two years, but can be renewed indefinitely in two year increments.
The spouse of an E-3 visa holder can file for and obtain independent employment authorization from USCIS. The spouse must file a separate application for employment authorization, but this employment authorization is independent of the principal spouse and entitles the E derivative spouse to employment authorization with any employer.
There may be many reasons to convert from H-1B to E-3 status, including numerical limitations, filing fees and spousal work authorization. The statute and regulations do not prohibit a change of status from H-1B to E-3 status.
The E-3 visa does not require you to maintain a foreign residence or to demonstrate that you are coming for a limited period of time. However, applicants must be able to attest that they intend to depart when their status terminates.
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