Skip to main content

Article by Sherwin Noorian, Global Services Manager at Ajuria Lawyers, US Immigration Attorney

The pandemic has certainly created immense disruption to international business travel and mobility of workers across borders due to border closures, loss of flight routes, consulate closures, and outright visa bans. The rules are constantly changing and are proving difficult for businesses to navigate. The US immigration system has had a turbulent year, but one visa type has remained a valuable and consistent tool for Australian businesses seeking to send employees to the US to work and do business: the E-3 visa.

What is an E3 visa and who can get one?

The E-3 visa is a US work visa only granted to Australian citizens. It was negotiated out of the Australia – US free trade agreement in 2005. Australia is one of only five countries – Chile, Singapore, Canada, and Mexico being the four others — to have a nationality-specific US work visa available to its citizens.

The E-3 visa allows approved Australians to work in the US for 2 years and can be readily and indefinitely renewed.

Importantly, the E-3 visa has a significantly smoother and less burdensome application process than other US work visas which the rest of the world has to use. The E-3 visa is applied for directly at a US Consulate rather than requiring a petition to be first approved by USCIS, a long and expensive process, as is the case with most other work visa types such as the H-1B.

The essential requirements of an E-3 visa are a US job offer from a US-based sponsor in a professional role (one that usually requires a Bachelors degree or higher) with the applicant holding a Bachelors degree (or 12 years of professional experience in lieu). The wage paid to the applicant must be above the published “prevailing wage” for the role’s occupational category in the metropolitan area(s) where the employment will be based.

What are the strategic advantages for companies

The E-3 visa should be viewed by Australian businesses seeking to expand and grow into the enormous U.S. market as a valuable strategic and competitive tool. Doing business in the US usually requires an on-the-ground presence, especially when it comes to sales, deals, and negotiations: customers, investors and other partners usually expect to see a real U.S. presence before proceeding to do business with an organisation. When evaluating potential overseas jurisdictions for investment and growth, ease of doing business including mobility of talent should be considered as key criteria by Australian companies, and the special advantages Australia possesses into the U.S. should be contrasted with the relative difficulties and lack of special arrangements with other large markets.

The E-3 visa presents a unique strategic advantage for Australian businesses, not only individual Australian professionals, ranging from start-ups to SMEs and large corporate enterprises that seek to expand and grow in the United States.

Here are a few key advantages:

  1. Most other countries have no E-3 visa type option: even other close allies of the United States such as the UK do not have special US work visa categories like the E-3. All but a handful of countries must use more difficult and restrictive visa categories such as the H-1B and L-1. These are subject to caps, random lotteries, inflexible timelines, political and bureaucratic scrutiny, higher costs, and other challenges. Below is a handy table detailing the main differences between these visas.
  2. E-3 visas are not subject to travel restrictions – currently there is a ban on non-essential entries into the US from travellers originating from Schengen area (Europe), the UK, and China. These zones make up roughly a third of all global GDP – firms in these areas currently cannot send their employees into the US without exemptions, and these exemptions currently carry a very high bar. No such ban has ever been placed on travellers from Australia due to the excellent handling of the pandemic here as well as the special diplomatic relationship that exists between the two countries. No mandatory quarantine is in place in the US.
  3. E-3 visas are not subject to Trump employment visa ban – bans implemented by the Trump administration on employment-based visas including the H-1B and L-1 will remain in place until March 2021. The E-3 visa was not banned. Australia has a further coveted position in the world at the moment: most U.S. Consulates globally, especially those in Europe, Latin America, India and China have suspended routine consular operations for most of the pandemic, making it nearly impossible to apply for a U.S. visa. U.S. Consulates in Australia resumed routine processing in November 2020 and now have resumed regular E-3 appointments.

Comparison of the main US work visas

E-3

Australian citizens

H-1B L-1 Intracompany Transfer
Petition required to be lodged with USCIS? No Yes Yes
Lottery / Caps No lottery.

 

10,500 per year – never attained. Usually ~5,000 issued per year.

Lottery once per year – April – currently random selection with ~33% odds, possibly switching to wage-prioritised selection None
Timeline for hiring someone outside of the US With emergency appointment at US Consulate based on urgent business need: potentially as soon as 7 working days

 

Standard process: depends on availability of appointments. US Consulate Melbourne, usually 2-4 weeks. Sydney: 6 weeks

Prepare and lodge petition during “cap” season before lottery – March. Wait for lottery. If successful, employment start date cannot be sooner than 1 October. Lodge petition with premium processing (add’l fee) with USCIS by mail.

 

Response within 3 weeks unless request for evidence is made (likely).

 

If approved, arrange and attend visa interview at US Consulate (4-6 weeks)

Degree Required Yes or 12 years of professional experience in lieu Yes or 12 years of professional experience in lieu No (with caveats)
Role Type Professional – one that usually requires a degree.

 

Role will be classified into one defined occupational category

Professional – one that usually requires a degree

 

Role will be classified into one defined occupational category

L-1A: must be a managerial/executive position with commensurate responsibilities and organisational ranking

 

L-1B: must be a “specialised knowledge” worker – discretionary in nature.

Salary Requirements Yes. Salary must be at or above “prevailing wage” for the selected occupational category in the metropolitan area the work will be performed in. Yes. Salary must be at or above “prevailing wage” for the selected occupational category in the metropolitan area the work will be performed in. No minimum salary, but in practice, both US salary and overseas salary will be considered when assessing managerial or specialised knowledge bona fides of the proposed role.
Is prior overseas employment with the company required? No No Yes – at least one year full-time with the foreign entity over the last three years
US Payroll Required Yes Yes No
Validity 2 years with indefinite renewals as long as “non-immigrant intent” is maintained Usually 6 years Maximum 7 years
Government fees $205 USD $460 USD (petition)

+ $500 USD fraud prevention fee

+ $2,500 USD (premium processing)

+ $190 USD (visa)

$460 USD (petition)

+ $500 USD fraud prevention fee

+ $2,500 USD (premium processing)

+ $190 USD (visa)

DISCLAIMER This information is current as of 19 January 2021 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

Talk to us

Author Sherwin Noorian

More posts by Sherwin Noorian