The E-3 visa category was established by the REAL ID Act of 2005 for Australian citizens seeking to perform services for a U.S. employer in a “specialty occupation.” The standard for E-3 visas is the same standard that applies to H-1B visas.
In order for a foreign national to obtain E-3 status, the individual must be sponsored by a U.S. employer. For an E-3 candidate in the U.S., the employer can generally file a petition with USCIS with evidence to establish that the position being offered to the E-3 candidate qualifies as a specialty occupation, the candidate is qualified for the position, and the job offer is bona fide. If the E-3 candidate is abroad, a petition is not required. Instead, the candidate applies for an E-3 visa at a U.S embassy or consulate.
Like H-1B petitions, the employer must submit a Labor Condition Application (LCA) for certification with the U.S Department of Labor. The LCA contains declarations about the employer’s obligations, including its payment of the prevailing wage for the position and the working conditions offered. The LCA requirement applies to both E-3 petitions filed with USCIS and E-3 applications filed at U.S. embassies or consulates.
The adjudication times for E-3 petitions vary. The average processing time is around 2 to 3 months. Unlike most other nonimmigrant visa petitions, premium processing service is not currently available for E-3 petitions. Moreover, an E-3 visa holder who is currently in the U.S. may not change employers until either: (1) the new employer has filed an E-3 petition and the petition has been approved; or (2) the E-3 visa holder has departed the U.S. and obtained an E-3 visa stamp at a U.S. embassy or consulate authorizing employment with the new employer.
An E-3 petition may be approved for a maximum period of two years and extended indefinitely in two year increments. The downfall is that unlike H-1B and L-1 visas, the E-3 visa is considered a “nonimmigrant visa”, and therefore, E-3 employees must maintain the intent to remain in the U.S. temporarily. An E-3 petition or application may be denied if the E-3 candidate is unable to demonstrate that he or she possesses nonimmigrant intent.
Like H-1B visas, there is an annual limit on the number of new E-3 visas that are available each year. Each fiscal year, 10,500 E-3 visas are available under the cap. However, due to a relatively low demand for this visa, the E-3 cap has never been reached.
The spouses and children of E-3 employees are eligible for a dependent visa, the E-3D visa. To obtain E-3D status, the dependent must either file an application with USCIS or apply for a visa at a U.S. embassy or consulate overseas. Spouses of E-3 visa holders may apply for authorization to work, but children may not work.