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E-3 Visa Guidance Issued January 6, 2006
The USCIS issued guidance to its regional offices regarding the processing of E-3 Australian citizen visas. The most salient guidance concerns process and procedure for those already in the U.S. seeking to change status to E-3.
A form I-129 (with $190 filing fee) is required when seeking to change status to E-3. Currently the Vermont Service Center is processing E-3s. The following documentation is required:
Proof of Australian nationality
Job Offer Letter describing the beneficiary's occupation, anticipated length of stay, and salary arrangement.
Evidence that the beneficiary meets the educational requirements for the position to be filled (Bachelor's degree or higher or its equivalent in the specific specialty occupation)
Evidence that the beneficiary meets any licensing or other occupational requirements, and
Evidence that the prospective U.S. employer has filed with the Department of Labor a Labor Condition Application (LCA) specifically designated for an E-3 Specialty Occupation.
At present, there is no Premium Processing (expedited 15 day processing) for E-3 applications nor is do H-1B portability provisions apply (enabling a relatively easy change of employers). As such, if time is of the essence, www.StrongVisa.com recommends proceeding to a U.S. Consulate abroad (not necessarily in Australia) to obtain the E-3 in an expeditious manner.
Changing E-3 Employers
Changing employers as an H-1B visa holder is provided for under AC21 portability provisions. Although these provisions make it possible to change employers, the new employer must still submit basically an entire H-1B packet to the government (i.e., not just a "transfer"). Portability provisions do not apply to E-3 visa holders. However, it is still possible to "change" employers as an E-3 visa holder. You must simply apply for a new E-3 visa with the new employer as petitioner. Because no premium processing is available for a change of status in the U.S., at this time, it would be preferable to proceed to a U.S. Consulate in Australia or to a country accepting third country visa applications (e.g., Canada). Once you have the approval for the new employer in hand, you may re-enter up to 10 days prior to the new employment start date.
Extending your E-3: File Early!
On another related note - for those of you holding E-3 visas currently - remember to file for an extension of your E-3 WELL BEFORE the expiration (like 6 months before) because, at present and without specific guidance from CIS, the 240 day rule does not apply to E-3 visa extensions as they do for H-1B extensions (i.e., you must have your E-3 extension approved prior to expiration whereas you have up to 240 days after H-1B expiration to remain in good H-1B status while your H-1B extension request is pending). I expect the CIS will come out with some kind of guidance on this point but until then, make sure you file those E-3 extensions early.
E-3 visa - specialist occupation
Question from www.Brainbox.com.au
Wednesday, 8 November 2006
Does anyone know how to check whether you have suitable qualifications for an E3 visa application? I'm a web developer with 6 years commercial experience and a degree in an unrelated discipline. I've been offered a position as a web developer in San francisco and the company is willing to sponsor me for an E3 visa. Any ideas if I will be able to get the E3 visa with these qualifications?
RESPONSE DISCLAIMER: The information provided by www.StrongVisa.com is of a general nature and should not be construed as a specific answer to a particular circumstance. This response is not legal advice nor presumed indefinitely up to date.
www.StrongVisa.com: Generally speaking the requirements of an E-3 visa are as follows: You must be an Australian citizen who has a "legitimate job offer" from a U.S. employer for a "specialty occupation" for which you are "qualified." Legitimate job offer simply means your employer will provide a job offer letter delineating that they are a U.S. Company with certain assets that wants to hire you for a temporary job that is a Specialty Occupation for which you are Qualified. They must also pay you the "prevailing wage" for that job meaning at least what the average U.S. worker gets for the same job. They can not pay you less. A Specialty Occupation is generally one in which a U.S. Bachelor's Degree or equivalent is required. If your degree is unrelated to the Specialty Occupation offered, then you must show supplemental evidence of having attained the equivalent of a related U.S. Bachelor's Degree in another way - e.g., through 5 years of directly related practical/work experience. Qualified, of course, means you hold that U.S. Bachelor's Degree or equivalent. From an employer's standpoint, it is highly advantageous to hire Australians who qualify for an E-3 over H-1B qualified workers for three reasons: (1) there are far more E-3 visas available per qualified worker than H-1Bs. This year, the fiscal year began October 1, 2006. However, H-1B visa numbers ran out in July, 2006, less than three months after the first date you could begin applying for H-1Bs. On the other hand, E-3 visas are STILL available for the current fiscal year (4 months AFTER H-1B numbers ran out for the current year). (2) E-3 visas are much cheaper for employers because they don't have to pay the substantial mandatory fees associated with H-1B visas ($750/$1500 Scholarship and Training Fee & $500 Fraud Detection Fee). And (3) E-3 visas can be renewed indefinitely unlike the 6 year cap with H-1B visas. From the employee's perspective, the E-3 is significantly different from the H-1B in two ways as well. First, spouses of E-3 visa holders can obtain work authorization whereas H-1B spouses generally can not. Secondly, there is no "dual intent" allowed for E-3 visa holders. This means an E-3 visa holder is a strictly "temporary" worker and can not simultaneously pursue permanent residency (green card) in the U.S. while on an E-3 visa. H-1B workers, although also considered "temporary" can pursue an immigrant visa (permanent residency) while they are on an H-1B. That being said, however, it should be relatively easy to transfer from E-3 to H-1B if the E-3 visa holder decides to pursue a green card. The E-3 visa is a relatively new matter and not too many of these visas have been processed. I have had a lot of luck with them and I think they are good for both employee and employer. H-1B portability provisions do not apply to E-3 visas. This means that you can not change employers unless you obtain an actual approval to do so (which could take several months unless you obtain the approval directly from the U.S. Consulate in Australia). Finally, if the E-3 candidate is currently in the U.S., he or she may consider exiting the U.S. with all the paperwork in hand in order to obtain an E-3 visa at a U.S. Consulate abroad (e.g., in Australia or Canada) vs. filing for a change of status in the U.S. and waiting out the long processing times at USCIS.
www.StrongVisa.com - Law Office of Susan Pai
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