E3 (Certain Specialty Occupation Professionals from Australia)
The E-3 visa is a non-immigrant visa that enables U.S. employers to hire and temporarily employ Australian professional workers in specialty occupations. A U.S. employer must sponsor the E-3 beneficiary and petition for the E-3 on behalf of the beneficiary. With the E-3 visa, a nonimmigrant Australian worker may legally live and work inside the U.S. for a duration of 2 years and may be renewed indefinitely in 2-year increments. E-3 holders may bring their immediate family members (including spouses and unmarried children under 21 years old) to the United States as dependents. The spouse and children need not be Australian citizens. Congress places an annual limit of 10,500 E-3 visas issued every fiscal year, which runs from October 1st to September 30th.
E-3 visas are very similar to H-1B visas. But unlike H-1B visas, E-3 visas are only available to Australian citizens, they are renewable indefinitely in 2-year increments, and E-3 spouses may work in the U.S. without restriction, even when the spouse is of a different nationality than the E-3 holder.
REQUIREMENTS for E-3:
To qualify for an E-3 visa, the petitioner must demonstrate that the beneficiary (1) is a national of Australia, (2) has a legitimate offer of employment in the U.S. from the petitioning employer sponsor, (3) has the necessary academic credentials and experience, and (4) will work in a position that qualifies as a specialty occupation.
According to U.S. federal law, a specialty occupation is an occupation that requires theoretical and practical application of a body of specialized knowledge. Such specialized knowledge encompasses, but is not limited to: architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts. Minimum entry into a specialty occupation requires that the foreigner have at least a bachelor’s degree in the specialty area from an accredited college or university.
In order for the foreigner to qualify for the job offer, he or she must possess a U.S. bachelor’s or higher degree in the specialty area from an accredited college or university, and such a degree must be required for the specialty occupation. However, substitutions to U.S bachelor’s (or higher) degrees are permitted. For instance, if the alien holds a foreign degree, that degree must be evaluated to determine its equivalency to a U.S. bachelor’s or higher degree in the specialty occupation. Moreover, if the foreigner holds an unrestricted state license, registration or certification authorizing him or her to practice the specialty occupation in the state of intended employment, such a license may also be substituted for the educational degree. Lastly, if an alien does not meet the educational requirements, he or she can substitute the degree requirement with professional training or experience in the specialty that is equivalent to having a degree in the specialty area.
The E-3 worker must be treated as a W-2 “employee”, and cannot be paid as “independent contractor” or put on bench. Moreover, E-3 is employer-specific, which means the E-3 can only work for his sponsoring employer(s). If the underlying job is terminated, the E-3 status ends. If the worker changes an employer or adds a concurrent job, he or she must file a new E-3 petition. If the nature of employment has substantially changed, the filing of an amendment is required.
Once the appropriate prevailing wage for a specific E-3 job occupation is determined, a Labor Condition Application (LCA) is filed with the Department of Labor (DOL). This form binds the employer to pay the determined prevailing wage and offer the E-3 visa holder the same benefits as other employees. After the DOL approves the LCA, the actual E-3 petition, in addition to other supporting documents and filing fees, can be filed with U.S. Citizenship and Immigration Services. Processing times vary according to interview wait times at U.S. consulates in Australia.
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