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E-3: Preference Category For Skilled Workers

 

The E-3 is an employment-based nonimmigrant visa for citizens of Australia. See list of FAQ regarding the E-3 below, and if you don't see your question, feel free to reach out to Legalpad for an answer!

Frequently asked questions

Q: What is the E-3?

A: E-3 is a nonimmigrant classification applying only to citizens of Australia who come to the U.S. to perform services in a speciality occupation

Q: Who is eligible for E-3?

A: To qualify for an E-3, you must:

  • Be a citizen of Australia;
  • Have a legitimate offer of employment in the U.S.;
  • Possess the necessary academic or other qualifying credentials; and
  • Fill a position that qualifies as a specialty occupation.

Q: Can I apply for E-3 if I am a permanent resident of Australia?

A: No. E-3 is only available for citizens of Australia. You must have evidence of valid Australian citizenship, such as an Australian passport.

Q: Is there a quota on E-3?

A: Yes, there is an annual cap of 10,500 new E-3 nonimmigrants, but it is a generous quota that has never been reached. E-3s are not subject to the H-1B annual quota or H-1B lottery.

Q: How do I apply for E-3?

A: First, your employer must submit a Labor Condition Application (LCA) to the Department of Labor (DOL) attesting to compliance with the requirements of the E-3 program. With the certified LCA and supporting documents, you could either apply for E-3 at a U.S. embassy or consulate and get an E-3 visa stamp if you are outside the U.S. If you are in the U.S., your employer could submit an  E-3 petition for you with USCIS

Please note that, if you were admitted in ESTA, you cannot change to E-3 status from within the U.S., which means you need to leave the U.S. and apply for E-3 at a U.S. embassy or consulate.

Q: Is an E-3 petition eligible for premium processing?

A: No. Premium processing is an expedited service which allows you to receive a final decision within 15 days of filing for eligible case types, unless a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) is issued. However, an E-3 petition is NOT eligible for premium processing.

Q: What job qualifies as a specialty occupation?

A: There is no definitive list of occupations that are eligible for E-3. Generally the speciality occupation requires i) a theoretical and practical application of a body of specialized knowledge; and ii) the attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the United States. In other words, the position must require at least a Bachelor’s degree in a related field AND you must have a required degree.

Q: What if I do not have a Bachelor’s degree? Can I still apply for E-3?

A: It depends. If you have long enough working experience, it may be considered an equivalent of a university degree. In general, three years of professional experience may be used as a substitute for one year of university-level education, which means 12-year working experience can serve as a substitute for a Bachelor’s degree. You would need to provide evidence of your work experience, which will then need to be evaluated through a credentials evaluation service for degree equivalency. 

Q: How long can I stay in the U.S. in E-3 status?

A: You can stay up to two years for initial entry. The E-3 status can be renewed indefinitely, in two-year increments.

Q: How can I extend my stay in E-3 status?

A:. If you are in the U.S., your employer can file the E-3 “extension” petition with USCIS. If the E-3 extension is timely filed before your current status expires, you will have up to 240 days of continued work authorization while the E-3 extension remains pending. However, considering that the E-3 petition is not eligible for premium processing,  you can also apply for the E-3 extension directly at a U.S. embassy or consulate.

Q: Can I go to school in E-3 status?

A: Yes, you may attend school provided that it is incidental to your employment in the U.S. In other words, study cannot be your primary purpose for staying in the U.S.

Q: Can my family join me in the U.S.?

A: Yes, your spouse and unmarried children under age of 21 are entitled to dependent (E-3D) classification. If they are abroad, they can apply for E-3D at a U.S embassy or consulate. If they reside in the U.S., they can file I-539 with USCIS for a change of status to E-3D. If you seek to extend your stay in E-3,  your eligible family members can also seek to extend their stay by filing the I-539 application with USCIS.

Q: Must my spouse or children be an Australian citizen as well?

A: No, your dependent can be of any citizenship to be eligible for E-3D as long as they can show proof of relationship with you, the E-3 nonimmigrant, and proof of you maintaining the E-3 status.

Q: Can my dependent work or study in E-3D status?

A:  Once your spouse is physically present in the U.S. in E-3D status, your spouse can request work authorization by filing Form I-765 with USCIS. It is not required for him/her to have a Bachelor’s degree, have a sponsoring employer, or work in a speciality occupation. Your children cannot work in the U.S. Both your spouse and children can go to school in the U.S.

Q: Can I change to a new employer in E-3? 

A: Yes. To change employers while remaining in the U.S., your new employer must first obtain a certified LCA with the DOL and then file an E-3 “Change of Employer” petition for you with USCIS. You cannot start working for the new employer until your E-3 “Change of Employer” is approved. 

Q: Can I change to a different job for the same employer in E-3?

A: Yes. However, if there is a material change in your role, such as significant changes to your job duties or work location, your employer must file an E-3 “Amendment” to amend your job with the same employer.

Q: Can I work part-time in E-3 status?

A: Yes. You may work on a part-time basis for your E-3 employer if DOL approves your LCA for part-time employment. 

Q: Can I work for multiple employers in E-3 status?

A: Yes, you may work for multiple employers at the same time. You should hold appropriate E-3 work authorization for each employer.

Q: What if I am terminated in E-3 status?

A: If this happens, you have a 60-day grace period or until the end of your authorized validity period, whichever is shorter, to i) find a new job and file an E-3 “Change of Employer” petition, ii) depart the U.S., or iii) change status.

Q: Can I change from E-3 to O-1 status?

A: Yes. If you reside in the U.S., you may submit a petition to change nonimmigrant status from E-3 to O-1 with USCIS. Your spouse and children in the U.S. should file Form I-539 for change of status to O-3. If you are outside the U.S., you can submit an O-1 petition for consular processing with USCIS. If the Consular O-1 petition is approved, you may present the approval at the U.S. embassy or consulate for visa stamping. Your spouse and dependents can use your Consular O-1 approval for their O-3 application.

Q: Can I file an EB-1 or EB-2 National Interest Waiver ( NIW) while in E-3 status?

A: Yes. Although E-3 is a nonimmigrant classification without dual intent, a pending or approved I-140 immigration petition does not impute immigrant intent. If you are in valid E-3 status, you can still travel abroad and re-enter the U.S. after an EB-1 or EB-2 NIW petition is filed with USCIS, and even after approval of the EB-1 or EB-2 NIW.

Q: Can I apply for a green card when I am in E-3 status?

A: Yes. You may file I-485 “green card” application when your priority date is current. But given that E-3 is a nonimmigrant classification without dual intent, we recommend you to wait at least 90 days from your last entry in E-3 before you file Form I-485 just to avoid a conflict in intent. You should avoid international travel while your I-485 is pending unless your Advance Parole has been issued, which usually takes 4-6 months.