Do’s and Don’ts of the E-3

by Protima Daryanani


Not too long ago, Lizzie B. created a wonderful chart highlighting some alternatives to the H-1B. In that post she covered the basics of the E-3: that it is for Australian citizens who are coming to the US to work in a professional job, that it is issued in two-year increments and that the Australian national must be getting paid a salary that is in line with what the Department of Labor (DOL) deems appropriate for the position. The E-3 is one of the easiest US visas to obtain. It is a fast process since the application can be made straight at the US Embassy/Consulate, and does not require piles of documents. Some employers choose to do the application themselves, and while most of the time everything goes well, sometimes things can go awry. I thought it might be helpful to create a list of do's and don’ts for the E-3 application to help avoid denials if employers are filing these themselves:

DO...

✔  BE AN AUSTRALIAN CITIZEN
The beneficiary of the E-3 application must be an Australian citizen with an Australian passport. People who live in Australia without having acquired citizenship are not eligible. The spouse and children of the principal beneficiary need not necessarily be Australian citizens in order to get the E-3 dependent visa (E-3D).

✔  SHOW TIES TO HOME COUNTRY
The E-3 visa does not allow Australian nationals to live in the US permanently, nor can they intend to do so.  Foreign nationals must show that they have plans to return back home after their assignment in the US is completed. Ties can be shown through such evidence as family relationships, ownership of property, and bank accounts, etc.

✔  HAVE A BACHELOR’S DEGREE OR EQUIVALENT
The Australian national must have at least a bachelor’s degree or its equivalent. Usually a diploma or other certificate is not the equivalent of a US bachelor’s degree. Sometimes the diploma can be complemented by three to nine years of professional work experience. Generally, under the regulations, three years of professional experience may be used as a substitute for each year of university-level education. Without any academic diploma, foreign nationals would be required to show twelve years of professional experience in the field in which they intend to work.

✔  BE PREPARED TO EXPLAIN IN DETAIL THE POSITION AND THE QUALIFICATIONS
Australian nationals should review and be familiar with all documents prepared for them and submitted to the US Embassy/Consulate. They should be ready to clearly and succinctly explain their qualifications, the details of the job they have been offered, and their ties to their home country. We have said this before, but it requires repetition: the success of the visa application is heavily dependent on the interview. These days consular officers are trained to rely more heavily on the interview than on the supporting documents. This is especially true in the context of the E-3 where there is no pre-approval from USCIS.

✔  ASK EMPLOYER TO SUBMIT THE LABOR CONDITION APPLICATION
The US employer must submit a Labor Condition Application (LCA) from the Department of Labor (DOL) by filing ETA Form 9035 on the DOL website. The application usually takes at least seven days to process. There is no fee to submit the ETA 9035 but it must be submitted by the employer so that they are aware of the attestations they are making and obligations they are undertaking by filing the LCA.
 
DON’T...

✗  TRY TO GET AN E-3 FOR A JOB THAT IS NOT A SPECIALTY OCCUPATION
Not only must Australian nationals have a bachelor’s degree or higher, but the job they are offered in the US must be one that is complex enough in its duties to require that the person undertaking the job have a minimum of a bachelor’s degree.  The immigration service defines a “specialty occupation” as one that requires:

  • a theoretical and practical application of a body of 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.

For example, an accountant is typically required to have a bachelor’s degree; however, a bookkeeper, whose job may be just as complex, may not be required to have a degree. The line gets a bit blurry with sales positions: a retail sales position may not require a degree but a higher level executive sales position may indeed require a degree. It is tricky and even more reason one should be prepared to explain the duties of the job at the interview. Although there is no definitive list of occupations eligible for the E-3 visa, US Embassy/Consulates in Australia suggest that applicants look at the Occupational Information Network website O*NET Online. While this O*Net list is useful it is not absolute; however, we have seen certain US Embassies/Consulates rely exclusively on this list in making their decisions which is problematic since they are required to look at the H-1B regulations in determining what is a “specialty occupation.”
 
✗  FREELANCE IN THE US
The E-3 visa is employer-specific. This means that E-3 visa holders may only work for the employer who sponsored their application. They may only do the job specified on their application and for the salary specified. They may not accept employment for part-time or side jobs even if they are paid in cash. They may not work for other companies in a different location even at the request of their employer. If an E-3 visa holder accepts a new job, a new E-3 application must be filed for the new position.

✗  ASSUME A COMMON LAW MARRIAGE IS SUFFICIENT FOR AN E-3D
Spouses and children of the E-3 visa holder may apply for an E-3D to come to the US with their spouse or parent. The US does not recognize de facto relationships (such as long terms partners, common-law spouses, etc.). Therefore, if Australian nationals are not married under the civil law or do not have a marriage certificate, the “spouse” would not be able to receive an E-3D. In this situation, the common law spouse may apply for a visitor visa (B-1/B-2) or enter the US on the visa waiver if they can document the long-term relationship to the satisfaction of the visa officer.  If common law spouses enter the US as visitors, they may not work in the US unless they obtain separate sponsorship for their own job. Keep in mind that same-sex partners must be married in a jurisdiction that recognized the marriage as valid under the law in order to apply for the E-3D. Lastly, E-3D spouses must apply for a work card in the US before commencing work. A child in E-3D status may not work in the US.

✗  UNDERESTIMATE THE LCA
In speaking with Australians and looking online, the LCA is presented as just one of the forms that needs to be completed. I often wonder if the applicants realize exactly what the form means and how important it is. To start with, the employer is required to post a notice and make several attestations about the conditions of employment. The employer also undertakes several obligations with respect to payment rates and work locations. The codes entered on the form impact the decision by the US Embassy/Consulate regarding whether the position is a specialty occupation. I could go on and on…It is essential the employer and foreign national understand the importance of this form and are careful and thoughtful in its completion. Foreign nationals should not file the LCA. It must be filed by the employer.  

✗  ATTEND THE APPOINTMENT WITHOUT THE PROPER DOCUMENTATION
In addition to the standard visa application (DS-160), Australian nationals should also ensure they have the approved and signed LCA, proof of the academic qualifications with any evaluation, copies of any licenses required for the position, proof that they have been offered a job in the US such as an offer letter with a description of the position and the salary, a valid undamaged passport with a blank page, and marriage certificates and birth certificates for any dependents.  The applicants should also bring any other documents required by their particular situation.
 
✗  BOOK FLIGHT UNTIL VISA IS APPROVED  
To finish, a bit of practical advice that applies to all visa applications. Even though the E-3 is a very fast application process, we strongly suggest waiting until visa applicants are told they have been approved before booking any flights to the US.