E-3 Visas for Australians
Similar to an H-1B, E-3 visas are available to eligible Australian citizens who seek to work temporarily in the U.S. for an employer who agrees to pay the employee the prevailing wage for the position offered, provided that the job is a "specialty occupation."
The process of obtaining a U.S. work visa is easier for many Australian citizens and their employers because Australian citizens are the only individuals who are eligible to apply for E-3 temporary work visas. 10,500 E-3 visas are available each year, the majority of which are never issued.
Similar to an H-1B, E-3 visas are available to eligible Australian citizens who seek to work temporarily in the U.S. for an employer who agrees to pay the employee the prevailing wage for the position offered, provided that the job is a "specialty occupation."
In order to sponsor an Australian citizen for E-3 status, an employer first must obtain an approved labor condition application (LCA) from the Department of Labor (DOL). For E-3 visa classification, the DOL has proposed to define an employer as a "person, firm, corporation, contractor, or other association or organization in the United States that has an employment relationship" with the E-3 worker.
The LCA requires the employer to agree to meet "prevailing wage" requirements and to pay the worker at least the actual wage paid to other employees in similar positions. The prevailing wage is defined by the Department of Labor (DOL) as being the wage paid to workers in a specific job category within a specific geographic region based upon a DOL determination or another "authoritative source" (e.g., a geographic specific salary survey published within the past two years). There are additional requirements associated with an LCA, including the requirement that a notice must be posted for 10 business days at the jobsite. This notice must state that the employer intends to hire an E-3 specialty worker, and employer must state the salary offered, or a salary range, provided that the low end of the salary still meets the prevailing wage. As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Although none of this documentation needs to be submitted to the DOL with the LCA, some of it must be available for public inspection while the rest must be maintained for review in the event of a DOL investigation.
The LCA application may be submitted to DOL electronically and approval is almost instantaneous, when properly filed. The filing of a LCA does not require DOL's confirmation that the employer's wage source meets DOL's criteria. The employer only needs to refer to the wage source that it relies upon when submitting the LCA. Moreover, DOL's approval of the LCA does not mean that the wage source satisfies DOL's requirements.
Employers must ensure that salaries to E-3 workers comply with DOL prevailing wage requirements. DOL has authority to audit E-3 files for 3 years after the filing of the LCA.
Under the Immigration Nationality Act, a specialty occupation is defined as an occupation that requires: (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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.
To apply for an E-3 visa, an Australian citizen must schedule an interview at a U.S. Consulate. In Australia, E-3 applications are required to submit E-3 visa applicants to the U.S. Consulate with jurisdiction over the applicant's place of residence. U.S. Consulates outside of Australia have the discretion to accept E-3 visa applications. However, non-immigrant visa applicants are generally discouraged from applying for visas in third-world countries.
In some circumstances, Australian citizens who are physically present in the United States upon lawful admission in a valid nonimmigrant status may request a change of status to E-3 specialty worker without having to leave the United States. For example, individuals in valid H-1B status may request a change of status from H-1B to E-3 status.
The E-3 visa classification is attractive to Australian citizens who meet the requirements for a variety of reasons: filing fees for E-3 visa classification are significantly lower than the H-1B and spouses of E-3 employees are eligible to apply for work permits upon admission to the United States in E-3 status.