Don’t Try This at Home: 5 Reasons Why Foreign Nationals Shouldn’t File E-3 Visa Applications On Their Own

by Elizabeth Brettschneider

The E-3 is a nonimmigrant visa that allows Australian citizens to temporarily come to the US to work for a US employer in a professional capacity. To qualify for this visa, Australian foreign nationals must have a legitimate offer of employment in the US with a salary that complies with Department of Labor requirements, fill a position that qualifies as a specialty occupation (i.e., a professional job that requires a bachelor’s degree or higher in a specific field of study), and hold at least a bachelor’s degree (or the equivalent work experience) in a field related to the position.

Unlike many other visa types, Australians can apply for the E-3 visa directly at a US Embassy/Consulate without first having a petition approved by US Citizenship & Immigration Services (USCIS).  For this reason, many foreign nationals believe that they can easily prepare the application without help from their employer or a qualified US immigration attorney. While it is certainly true that foreign nationals can prepare and file certain applications themselves, such as the N-400, Application for Naturalization, for example, this post suggests some reasons why in the context of the E-3 foreign nationals and their employers may wish to engage the help of an immigration attorney.

1. Employer/Employee Relationship Must Be Demonstrated (No Self-Sponsorship Allowed)

The E-3 visa is employer-specific. Indeed the application for an E-3 visa is an application made by the employer-sponsor on behalf of the foreign national. This means that E-3 visa holders may only work for the employer who sponsors their application and will need a new sponsor to file an application on their behalf if they change employment. They may only do the job specified on their application and for the salary specified. They may not accept outside employment even if they are paid in cash (or not paid at all) and they must not be in a self-employment situation.

An employer/employee relationship must exist between the petitioning company and the foreign national beneficiary. Consequently, there must be two parties involved in any E-3—the company and the foreign national—and it is the company that is requesting the services of an employee. A foreign national cannot make a request for an E-3 visa without a legitimate job offer in the US and the cooperation of an employer to provide the necessary documentation to prove the offer of employment and the terms of that employment.  

Since self-employment is not allowed, there must be a company separate and apart from the Australian national which is making the job offer. An individual representing the company must sign the forms and documents needed for the E-3 visa application. The foreign national must not sign them.

2. The LCA Should Be Filed by the Sponsoring Employer Only

A certified Labor Condition Application (LCA) is an essential part of E-3 visa applications. To get such a certification, the US employer must submit an LCA to the Department of Labor (DOL) by filing ETA Form 9035 on the DOL website. 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. One of the main employer’s obligations is an attestation about the wage they are committing to pay the foreign national. This wage cannot be lower than the wage set by the Department of Labor as the “prevailing wage” for similar positions in the area where the job will be performed. It also cannot be lower than the “actual wage” paid to similarly employed workers at the company. Determining what the “actual wage” figures are for an LCA application is not something that foreign nationals could do since they are not privy to the salaries of other employees at the company. Additionally, determining the “prevailing wage” as released by DOL statistics requires analysis and evaluation of the job duties and employer requirements, which also cannot be done by a foreign national. The LCA is in part the employer’s attestation that they have properly analyzed the wage to be paid to the foreign national and determined that they are not undercutting US workers with the salary they are offering to the foreign national. 

The employer also must make several other promises and representations in order to be granted the certification of the LCA. Of note, they must:

  • Maintain an LCA (Form ETA 9035 and/or ETA 9035E) with true and accurate information for each permanent work site;
  • Offer the E-3 worker the same working conditions and fringe benefits as are offered to similarly employed US workers;
  • Attest that the employer does not employ an E-3 worker where there is a strike/lockout in progress in the worker’s occupation;
  • Notify workers or their bargaining representative of the intent to employ an E-3 worker at any location where other workers are in the same occupational classification for which an E-3 worker is sought or placed;
  • Maintain and make available for public examination the LCA and other required documents;
  • Not retaliate or discriminate against any worker who (a) discloses information that (the worker believes) shows a violation of this program, or (b) cooperates with any proceeding concerning the employer’s compliance with this program;
  • Provide the E-3 worker with payment for all work-related expenses; and
  • Notify the USCIS of any changes in the E-3 nonimmigrant’s work status;

Foreign nationals should not be making any of these attestations on the employer’s behalf.  We cannot stress enough the importance of the point that foreign nationals should not have any involvement with the filing of an LCA. The employer must file the LCA given its obligations thereunder. We have seen foreign nationals come into our office with LCAs that they prepared and filed themselves without understanding the implications to the employer of the LCA filing. This is not ok! The employer could face major consequences including fines and sanctions if they are discovered to have filed incorrect LCA applications with the Department of Labor. Even if foreign nationals or employers chose not to engage a lawyer, the employer must at the very least file the LCA and understand its obligations in sponsoring the E-3.

3. The E-3 Position Offered Must Be a “Specialty Occupation,” As Defined by the Immigration Regulations

E-3 beneficiaries must have a bachelor’s degree or higher (or the equivalent).  Additionally the position offered in the US must be one that is complex enough in its duties to require a minimum of a bachelor’s degree in a specific and related field. 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, it is industry standard for an art director to have a bachelor’s degree in a field such as graphic design, communications, or similar. A photographer, however, whose job may be just as complex, may not typically be required to have a degree in order to do the job.

The concept of specialty occupation can be complex, requiring the employer to explain and document the intricacies of the position’s duties in a specific enough way that the consular officer adjudicating the case can understand why a bachelor’s degree would be required for the position. The foreign national should also be prepared to explain the duties of the job at the interview but having the paperwork in hand will make the interview go much more smoothly.

Although there is no definitive list of occupations eligible for the E-3 visa, US Embassies/Consulates in Australia look at the Occupational Information Network website O*NET OnLine for guidance. While this O*Net list is useful, it is not the only way to establish when a position is a “specialty occupation.” The officers are also required to look at the H-1B regulations in determining what is a “specialty occupation.” We have seen, however, certain US Embassies/Consulates rely exclusively on the O*NET list in making their decision, in error. An attorney preparing the case can anticipate this and could prepare additional documentation for the applicant to submit to address why a position should be considered a specialty occupation.   

4. The Job Offer Letter Must Be Prepared and Signed by Employer

The instructions on the US Embassy/Consulate’s website about what is required for the E-3 interview include a listing for a job offer letter. But just what has to be included in that letter is important as it can be the difference between approval and denial of the E-3 application.  As discussed above, the job offer letter has to make clear that there is an employer/employee relationship and that there is a bona fide job offer. The terms of the offer need to be provided in the letter. The letter must confirm that the company is offering a position to the foreign national and thus the letter needs to be signed by a representative of that employer. Again, the foreign national applicant cannot sign this letter.

Additionally, as discussed above, the letter should include a detailed job description of the position to be performed by the foreign national so that the consular officer can understand the complexity of the duties in order to determine that a bachelor’s degree in a related field is necessary to adequately perform the role. The assistance of a lawyer familiar with the legal concepts may be able to facilitate the process and assist in creating a letter that will address any potential concerns of the consular officer.

5. Not All Degrees Are Created Equal

Australian nationals applying for an E-3 visa must have completed at least a bachelor’s degree or its equivalent. If the degree is obtained outside of the US, it will need to be evaluated by a professional evaluation service that can find it equivalent to a US bachelor’s degree and write a report confirming this—which would need to be presented as part of the E-3 application. Some countries issue bachelor’s degrees after three years of study instead of the typical four years of study in the US. The evaluation services will sometimes conclude that a three-year degree is not the equivalent of a US bachelor’s degree. A two-year “diploma” is almost certainly not considered the equivalent of a US bachelor’s degree. When, however, foreign nationals have completed less than one year or only two or three years of college-level education, they can sometimes supplement this in the educational evaluation with several years of professional work experience to add up to the equivalent of a four-year US bachelor’s degree. Generally, under the regulations, three years of professional work experience may be used as a substitute for each year of university-level education.

A combination of work and educational experience can be evaluated and a report written by a professional evaluation service can be presented at the interview. A lawyer can help determine the need for an evaluation report or the relevance of a bachelor’s degree to the position offered.

We get that in a competitive job market foreign nationals looking for jobs in the US compete with US workers and they want to be able to tell a company to “not worry about” the visa, that they’ll “take care of it” on their own. They are trying to make it easy on the employer—we get that. But while foreign nationals can certainly make the process less burdensome for the employer by scheduling their own appointment at the US Embassy/Consulate, organizing the list of documents they have to bring to the appointment, and asking the employer for the job offer letter and LCA, corners should not be cut when it comes to legal attestations on applications to the US government.

Simply put, foreign nationals should not prepare offer letters and LCAs for an E-3 application. Involving the employer and attorney after-the-fact may be too late as the damage may be already done. For all these reasons we recommend that foreign nationals and their employers obtain legal guidance to prepare the E-3 application. With the increased site visits by DOL and USCIS, employers should make sure all documents and applications are carefully prepared and submitted and all records are in order. Sometimes it’s best to ask for help!