By Globalization PartnersJune 2020
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When trying to bring foreign workers into the U.S., a company often needs the employee to obtain an H-1B visa, but Australians have the unique opportunity to apply for an E-3 visa, thanks to a trade agreement from 2005. The E-3 visa offers several advantages over the H-1B visa and creates a more streamlined process for getting workers across country lines.
This visa isn’t as common as others, so the E-3 visa application can be unfamiliar territory for some employers. We’ll go over the E-3 visa process and requirements, so you know what you need to get an Australian national working for you as quickly as possible.
What Is an E-3 Visa?
The E-3 visa is an authorization from the United States for Australian citizens to come and work in a specialty occupation. These specialty occupations typically require a university degree and degree-level skills and knowledge to fulfill the duties of the position. A U.S. employer must sponsor the visa and meet specific qualifications, which we’ll discuss later. The Australia-United States Free Trade Agreement of 2005 established the E-3 visa. It is similar to the H-1B, but with some notable advantages and differences.
The E-3 visa creates several benefits for Australians and U.S. employers, including the following.
- It costs less than an H-1B. Filing costs for the H-1B can be high — upward of $4,000 with premium processing — so the lower price of the E-3 is helpful for many businesses. The E-3 doesn’t cost anything for the employer and has a relatively small fee for the applicant.
- It is easier to get than an H-1B. There are only 85,000 H-1B visas available for workers from all countries, 20,000 of which are reserved for those with advanced degrees. Applications usually exceed the number of available visas, and the U.S. government conducts a lottery to determine who gets them, which can significantly reduce one’s chances. The E-3 visa, on the other hand, is exclusive to Australians and capped at 10,500 visas. So far, the number of applications has been relatively far from reaching the cap, meaning that nearly everyone who applies and is qualified can get an E-3. Plus, that 10,500 does not include renewals.
- It allows the E-3 holder’s spouse to work. If someone holds an E-3 visa, their spouse and children can also move to the U.S. under an E-3D. The spouse can even work if they submit the appropriate forms and receive an Employment Authorization Document (EAD). Many other visas don’t allow this.
- It is renewable indefinitely. While the length of the visa is only for two years, renewing it can allow for a more extended stay, assuming the employer is still willing to sponsor the employee.
One important factor to note is that the E-3 visa is not a dual-intent visa. That means that applicants can’t pursue one with the intention of immigrating to the U.S. It is intended purely as a temporary measure. Applicants need to show their attachment to Australia in their application.
Eligibility is fairly straightforward for the E-3 visa. Applicants must:
- Be an Australian citizen.
- Have no plans to move to the U.S. permanently.
- Have a legitimate offer of employment for a specialty occupation position in the U.S.
- Have the required academic qualifications, including licensure if necessary.
The employer also has a few requirements to meet, as specified by the U.S. Department of Labor (DOL), such as proving that hiring a foreign national won’t negatively affect labor conditions, like wages or hours, of similarly employed U.S. workers. Some of the requirements employers need to abide by include:
- Maintaining an accurate Labor Condition Application (LCA) for each permanent work site.
- Paying the E-3 worker the required wage rate.
- Offering the same working conditions and benefits as those offered to similarly employed workers in the U.S.
- Not allowing the worker to pay the U.S. Citizenship and Immigration Services (USCIS) petition filing fee, fraud prevention and detection fee, or an early cessation penalty.
The LCA is where much of this information is conveyed to the government. The document must be filed with the DOL. It outlines details of the job and confirms that it meets the standards for the visa, such as the specialty occupation nature of the position. It also confirms that the employer couldn’t find a suitable U.S. employee for the job. Some of the information within that document includes:
- Wages: The employee’s pay must be equal to or higher than the prevailing wage for the position in the area.
- Working conditions: An employer needs to show that hiring a foreign worker won’t negatively impact the conditions for workers in similar positions. They also need to illustrate that the E-3 worker will have similar working conditions as U.S. employees.
- Notice: The employer needs to notify employees of the company or a bargaining representative about the application.
- Strike, work stoppage, or lockout: The employer has to attest that there is no lockout, strike, or other halt to work when the application is filed and that they will notify the Employment and Training Administration (ETA), a part of the DOL, within three days if it occurs after submission of the application. The LCA cannot be used for the petition until work resumes.
Both the employer and the employee will need to submit certain documentation for the E-3 visa application.
- The applicant’s valid passport, along with information for the DS-160, such as travel history to the U.S. and work history.
- A formal offer of employment with a specific job description addressed to the applicant and printed on company letterhead.
- A copy of the LCA that the employer has filed with the DOL.
- Confirmation of the DS-160, the online nonimmigrant visa application.
- Copies of any documents to support qualifications, such as transcripts or licensure.
- Documents to illustrate ties to the home country and prove that there is no intent to immigrate permanently to the U.S.
While proving education is typically easy — submission of a transcript from an Australian institution is usually valid — showing proof of sufficient experience can be a little more complicated. Applicants who lack a degree but have many years of professional experience in the industry or those who have a degree in a different field than the one they have experience in may seek this route. In specialty occupations, you can look at years of experience versus education in a “three-to-one” rule. This rule refers to the idea that three years of progressively responsible experience create an appropriate substitute for one year of post-secondary education.
Under this rule, someone who finished two years of school but did not obtain a degree would need about six years of experience to make up for those other two years. Someone with no schooling would need 12 years of experience. This experience should show that they’ve taken on more responsibility, such as promotions, and that they demonstrate expertise.
Of course, this experience evaluation involves other factors that can affect the length of time needed to prove proficiency. Recognition from experts within the occupation, membership in professional associations, licensure, and significant achievements can all help an applicant’s case.
As far as showing that the applicant does not intend to move to the U.S., establishing nonimmigrant intent can be done through a few different methods that focus on the following aspects.
- Financial: Papers that show property ownership, investments, or bank accounts in the home country show financial ties.
- Family: For a worker whose family lives in the home country, showing that relationship can display their intent to return, especially for circumstances like aging family or siblings who rely on the employee for care. This option may be suitable for younger applicants who may not have property or investments yet.
- Employment: A letter from a current or prospective employer committing to employing the applicant when they return can show sufficient ties to the country.
- History: If the applicant has a history of visiting other countries and returning to Australia, this practice can support their case.
How to Apply
Once you’ve compiled all the documentation, the applicant will need to apply at a U.S. consulate or embassy in Australia. This first-time application is faster than many visa applications that occur within the U.S. and is often approved at the time of the interview and issued within five business days.
To apply from outside the U.S., the applicant first needs to submit the DS-160 form to the consulate or embassy and pay the required application fee. They will receive a confirmation form and select an interview date. Depending on the region, interview dates can be available right away or several weeks from the date of submission. At the interview, the applicant needs the bring all required documentation and be prepared to answer some questions. After the meeting, the consulate processes the application.
A renewal from within the U.S. can be more difficult or time-consuming. If applying to renew or extend an existing E-3 visa from within the U.S., the applicant should submit the I-129 form along with the required documentation.
Cost and Processing
Another one of the benefits of the E-3 visa is its lower cost compared to the H-1B. The costs for an H-1B visa can be anywhere from $1,710 to nearly $8,000. The E-3, on the other hand, has no visa issuance fee, a low application fee, and no fees from USCIS. The initial E-3 application is a low-cost option for both the employer and the applicant. The application fee for an E-3 visa is currently $205, while the employer has no associated fees. One expense that may be worth noting is the $410 to submit the I-765 and request an EAD for a dependent spouse to work in the country.
Employers do not need to file an I-129 for the application, which is required for many visas and can significantly drive up costs with associated fees. For renewals, the I-129 is required, but the high fees typically present for an H-1B are not in place, meaning it costs $460 for the base filing fee. Processing times can vary, but usually, the I-797, which conveys the results of the petition, should come back within two to three months after filing the I-129.
There is no fee to submit the required LCA, and there are no options for premium processing fees.
Renewals and Changes
One major bonus of the E-3 visa is that it can be renewed indefinitely. The visa itself is valid for 24 months, or as long as the employer’s LCA is valid, whichever comes first. Renewals are processed with the I-129 form, as mentioned above.
An E-3 visa holder can change employers, provided the new employer meets all requirements and is willing to sponsor the applicant. Switching employers is relatively simple — the applicant doesn’t need to return to Australia or have another interview. The new employer must file an LCA and get an I-129 petition approved before the applicant starts work. These submissions need to occur relatively quickly since the gap between the jobs must be less than 10 days. The same process applies to a change in employment from the same employer.
An E-3 visa can also be switched to another visa. This switch may be necessary if the applicant finds that they want to stay in America permanently. Remember, though, that the E-3 visa is not a dual-intent visa, and the applicant had to establish their intent to leave the country after their visa period ended. So, applying for a green card while on an E-3 visa violates what they agreed to initially, and there is no easy route to a green card from it. It is useful to note that USCIS states that applications for first-time admission, status changes, or extensions cannot be denied based on an approved or filed immigrant visa preference petition or an approved request for permanent labor certification.
An indirect, clunky, and somewhat expensive way to gain permanent residency is to switch from an E-3 to an H-1B and then apply for a green card. Of course, the H-1B comes with more expensive fees for the employer and more limitations for the applicant and their spouse or dependents, not to mention there is less likelihood of being approved.
Spouses and Dependents
One of the more appealing parts of the E-3 visa is the freedom it offers to spouses and dependents. Spouses and dependents can come to the U.S. with the E-3 visa holder under an E-3D visa. These E-3D visas are not included in the 10,500 cap. Spouses are allowed to work after they submit and are approved with form I-765.
Contact Globalization Partners About Expanding to Australia
While bringing Australians to the U.S. is a great way to tap into this pool of qualified candidates, expanding to Australia can also offer excellent opportunities to businesses of all types. If expansion is on your radar, Globalization Partners can help.
We are a global professional employer organization (PEO), which means that we operate as the employer of record in other countries. A PEO takes care of payroll, compliance, benefits, and more, making it easier for companies to expand across the globe and grow the business.