E-3 Visa – Australian Specialty Occupation

E-3 is a nonimmigrant status for citizens of Australia coming to temporarily work in the US in specialty occupations. A specialty occupation is an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge; and [the] attainment of a bachelor’s or higher degree in a specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

E-3 status can be initially valid for up to 2 years and can be extended in 2-year increments with no maximum limits.

For any additional questions, please email ICS at HR-ICS@ufl.edu

Eligibility

E-3 status is available only to eligible and qualified Australian international employees who will hold a position classified as a “specialty occupation.” These occupations/positions are recognized by HR Immigration Compliance Services as those that require a bachelor’s or higher-level degree in a field that qualifies the applicant to perform the position’s required duties. There is no minimum FTE for to be considered for an E-3 sponsorship.

Requirements for the E-3 visa are

• The job offered must require a minimum of a bachelor’s degree (or its equivalent)
• The candidate must possess this degree in a specialized field or hold the equivalent.

Positions that do not qualify for E-3 sponsorship:

• If the minimum qualifications for a position states “or any equivalent combination of experience/training/education” in lieu of bachelor’s degree.
• A position that requires a bachelor’s degree in any field, rather than in a field that is directly related to the duties of the position.

Types of Cases

Consular Processing

E-3 status can be obtained without the need to file a formal petition with USCIS. There are no USCIS filing fees and the application process can be significantly faster since there is no premium processing service available through USCIS on E-3 petitions.

With the original support letter and original Labor Condition Application (LCA) and other documents required by the US Consulate/Embassy, the international employee will apply for the E-3 visa stamp at the US Consulate/Embassy abroad. The international employee will not be in valid E-3 status until entering the US and presenting the passport containing the E-3 visa stamp. international employees may enter the US as early as 10 days prior to the approved start date.

Upon entry, the international employee must provide the department a copy of their E-3 visa stamp and their electronic I-94. The department must forward copies of these documents to ICS.

Change of Status

Typically, we do not recommend COS for E-3 due to no Premium Processing option. However, if an international employee is currently in the US in a valid nonimmigrant status (H-1B, H-4, J-1, J-2, F-1, F-2, O-1, etc., but NOT B-1/B-2) the status can be changed to E-3. The international employee can begin working on E-3 status once the department has the approval notice in hand and the start date as occurred.

International employees currently working at UF under another status (J-1 or F-1 OPT) can continue to work under that status until the E-3 status is approved and the start date is effective or that other status ends, whichever occurs FIRST. If the petition is submitted to USCIS during the F-1 or J-1 grace period, the international employee is eligible to remain in the US but not eligible to work or volunteer.

Change of Status requests from current J status holders will require the international employee to obtain a waiver of the Two-Year Home Residency Requirement through the Department of State and USCIS or for the international employee to have fulfilled the 2-year requirement.

Not all J status holders are subject to the Two-Year Home Residency Requirement.

Extension

E-3 status can be initially valid for up to 2 years and can be extended in 2-year increments with no maximum limits. An extension request may be filed with USCIS up to 6 months prior to the expiration.

The desired start date will be the day after the previous E-3 expires. The employee may continue working for up to 240 days and reside in the US as long as the E-3 extension was filed BEFORE the current E-3 expiration. The 240-day period commences on the day following the expiration of the previous USCIS approval. If the petition were to be denied within that 240-day period, the employment authorization would end on that day.

Amendment

Departments must consult with ICS prior to changing any terms of the E-3 employment (i.e., when there is a change in the employee’s job title, duties, worksite location, FTE, etc.) for existing employees to determine whether an amended petition is required.

If an amendment is required, the employee can begin the new working conditions once the petition is submitted to USCIS and the requested start date has occurred.

Change of Employer/Transfer (Portability)

If a hiring department wishes to sponsor an individual who is already in the U.S. in E-3 status through another employer, UF must file a petition for change of employer with USCIS. The international employee must maintain current E-3 employment in order to be eligible for an E-3 transfer.

However, there is a 60-day grace period for those whose employment is terminated prior to their E-3 expiration date, which will enable them to extend, change or otherwise maintain status or prepare to depart the United States. We would advise there be no gap in employment to be safe. The 60-day grace period can be less depending on the E-3 expiration date. It is a 60-day grace period OR the date the E-3 actually expires – whichever comes first.

Per UF policy, the international employee can only begin employment at UF once we receive the electronic “USCIS Email Approval Notification” from Fragomen AND the start date occurs.

Process & Timeline

Step 1: Department completes and submits case initiation in Fragomen Portal

The department will be responsible for gathering all the information and documentation and initiating the case in the Fragomen Connect Portal.

Step 2: ICS Review and analysis of case initiation questionnaire (1 to 2 weeks)

ICS will perform a review of the information and documentation provided. We will reach out to the department with any questions. Once the application is complete, ICS approves and submits the questionnaire to Fragomen.

Step 3: Prevailing Wage Determination (5+ months)

The Department of Labor (DOL) regulations require UF to pay an international employee the Prevailing Wage or Actual wage, whichever one is the higher salary. UF uses various wage sources depending on the specifics of each case. Most common is the Prevailing Wage Determination that is submitted with the Department of Labor (DOL PWD), and Occupational Employment Statistic wage (OES PWD).

For Change of Status, Change of Employer and Consular Processing cases that have start dates less than 8 months from the time of case initiation may be required to complete the Non-Certified PW Acknowledgment Form, also known as the OES Memo.

Step 4: LCA Posting (2 weeks)

In conjunction with Fragomen, ICS will post the “Notice of Filing of a Labor Condition Application”. The LCA must be posted for 10 consecutive business days (excluding weekends, holidays, or days UF is closed)

ICS will provide the Posting Notice to the Department to physically post at any non-UF sites. The Department will have to provide a copy of the posting to ICS after the posting period.

This step may take longer since Fragomen does prepare applications based on start date/expiration date.

Step 5: LCA filed with Department of Labor (1 week)

Once ICS verifies the Notice of Filing was posted, Fragomen will submit the LCA to the Department of Labor for official certification.

Step 6: Preparation of the E-3 Petition (2 to 3 weeks)

Once the LCA is certified, Fragomen will prepare the USCIS filing to Petition for a Nonimmigrant Worker and supporting documents.

If filing with USCIS, ICS reviews and signs the petition and returns to Fragomen for filing. If consulate processing, ICS notifies the department to pick up the original LCA and forwards the support letter to them for signature and to provide to the international employee.

Step 7: USCIS Processes E-3 (8 months to 12 months) / Consulate Processing 

The current processing times for E-3 petitions 8 to 12 months. USCIS does post processing time information on their website, but that may not always be the most up to date information. E-3 petitions are not eligible to be filed under the Premium Processing service.

Consulate Processing

The current processing times for E-3 petitions will vary.

Each US Consulate/Embassy has their own set of requirements for processing a non-immigrant visa application. All non-immigrant visa applicants will need to go to https://ceac.state.gov/genniv/ and complete the online application, Form DS-160 (the application for a nonimmigrant visa).

Please go to the respective U.S. Consulate/Embassy’s website for information on the requirements. Make sure to follow all of the instructions.

The international employee may need to provide the following documentary evidence with their application for an E-3 Visa:

1. An approved Labor Condition Application (LCA), which the U.S. employer obtains from the Department of Labor. The international employee is advised not to book an interview appointment until they have received this form.
2. Evidence of academic or other qualifying credentials and a job offer letter from the employer.
3. If their degree and higher-level qualifications are from an Australian institution, the international employee does not usually need to provide certified copies or evidence of their U.S. equivalent, but must bring to their visa interview a copy of any certificates, and if possible, transcripts for the course of study. If their qualification(s) are not from an Australian institution, a certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree could be used to satisfy the “qualifying credentials” requirement, but the international employee may prefer to wait until their visa interview to confirm whether this is necessary.  The international employee should take a copy of any certificates and transcripts to their visa interview, and if it is also necessary to produce certified copies of certificates and evidence of U.S. equivalence, they can send these to the Consulate after the interview, although their visa will not be approved until this is received. Likewise, a certified copy of a U.S. baccalaureate or higher degree, as required by the specialty occupation, would meet the minimum evidentiary standard.
4. A certified copy of any required license or other official permission to practice the occupation in the state of intended employment or, where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that the international employee will be obtaining the required license within a reasonable time after admission.
5. A Self-Addressed Express Post Prepaid Satchel (Plastic Envelope) from Australia Post. This MUST be provided for the return of the international employee’s passport and U.S. visa. Paper envelopes from Australia Post, and envelopes/satchels from courier services/companies other than Australia Post will not be accepted. It is suggested that the international employee take a photo with their phone of the tracking number on the prepaid satchel for any future inquiries and for their records.

Step 8: Approval Notice (1 to 2 weeks) / Visa Stamp (1 to 2 weeks) USCIS Filing

The original approval notices are sent from USCIS to Fragomen. Fragomen notifies ICS when they receive the notice as well as forwarding the original notice to our office. Once ICS receives the approval notices, we email the department with information on collecting the original notice.

Consulate Processing

It is up to the discretion of the consular officer whether to approve the E-3 visa or not. If approved, the international employee’s passport will be returned to them by the US Consular/Embassy with a E-3 visa stamp.

The international employee will not be in valid E-3 status until entering the US and presenting their passport containing the E-3 visa stamp. International employees may enter the US as early as 10 days prior to the approved start date.

Fees

Consulate Processing filing fees:

E-3 Filing Fee – required, this is substantially less than USCIS filing fees

Fragomen legal fees:

• $1,000 Fragomen legal fee for case processing
• Request for Evidence response fees: determined at time of RFE
• Additional Rush fees – cases submitted with less than a certain of days until the requested start date are subject to additional Rush fees. Rush fees are an employer fee. Cases requiring Rush fees should be discussed with ICS prior to initiation submission.

USCIS filing fees:

E-3 Filing Fee – required

Fragomen legal fees:

• $1,000 Fragomen legal fee for case processing
• Request for Evidence response fees: determined at time of RFE
• Additional Rush fees – cases submitted with less than (# of days) of processing until the requested start date are subject to additional Rush fees. Rush fees are an employer fee. Cases requiring Rush fees should be discussed with ICS prior to initiation submission.
• Additional service provided – if needed, Fragomen will advance the filing fees for the department. There is an additional $100.00 processing fee if you use this service.

For more detailed information on fees, please refer to the “ICS Fees and Rush Chart” link under the Resources section on our website.

Frequently Asked Questions

How long can an international employee be in an E-3 status?

There is no maximum an international employee can be in E-3 status. The E-3 status is initially valid for up to 2 years and can be extended in up to 2 year increments.

How soon after filing an E-3 petition with USCIS can an international employee start to work?

Change of Status inside the US – The international employee can begin working on E-3 status once the department has the approval notice in hand and the start date as occurred. If they are currently working at UF under another status (J-1 or F-1 OPT) they can continue to work under that status until the E-3 status is approved and the start date is effective or that other status ends, whichever occurs FIRST.

Change of Employer inside the US – If the international employee is already in E-3 status with another employer, UF policy states they may begin to work once the department has received the electronic approval email from USCIS. It is not advisable to leave their prior employment too soon.

Amendment inside the US–

If the international employee is changing employment conditions (title, duties, full time equivalency, worksite in a different county), they may begin work once Fragomen submits the petition to USCIS, and the requested start date has occurred.

What if the international employees job responsibilities change or they have to switch from one job location to another?

If the international employee has a material change in job responsibilities (including promotions, FTE, etc.) and/or there is a change in location, UF will need to file an amended E-3 petition on their behalf.  Any change in job location or job duties should be brought to the attention of their department liaison, prior to accepting the change in employment. The amendment will need to be filed with USCIS or processed through the international employee’s home country prior to any changes in their employment. If processed inside the US, the international employee can begin the new working conditions once the petition is submitted to USCIS and the requested start date has occurred.

How is E-3 status extended?

E-3 extensions can be filed with USCIS up to 6 months before the expiration date of the current E-3 status. ICS will need additional time to review and process the application.  If an extension application to continue the current E-3 employment is filed prior to expiration of the current authorized stay, the international employee may be eligible for continuous work authorization for up to 240 days while the application is pending. 

Can an international employee continue working if their E-3 Extension has not been approved by the time their current E-3 expires?

If an extension application to continue the current E-3 employment is filed prior to expiration of the current authorized stay, the international employee may be eligible for continuous work authorization for up to 240 days while the application is pending. 

How does an international employee or department check the status of a case after it has been filed with USCIS?

USCIS allows you to check the status of a case by using their online Case Status tool. Please utilize this link to track the status of your application : Case Status Online – Case Status Search (uscis.gov)

When will the international employee receive their I-797 Approval Notice?

Once USCIS approves the international employee’s petition, they will forward the I-797 Approval Notice to Fragomen. Please note that it can take anywhere from several days to several weeks for USCIS to mail the approval notice to Fragomen. Once Fragomen receives the approval notice, they will prepare an approval packet and send it to ICS via FedEx. Once received, ICS will notify the department to pick up the original approval notice. The department will then forward the approval notice to the international employee.

When should the department request the filing fee checks?

Since checks are only valid for 6 months, please request the checks no earlier than 6 months prior to the desired start date.

Who are the filing fee checks made out to?

The filing fee checks should be made payable to: U.S. Department of Homeland Security Citizenship and Immigration Services 24000 Avila RD RM 2302 Laguna Niguel, CA 92677 United States

Can an international employee get paid for outside conferences and/or complete work outside of their E-3?

An E-3 employee is not permitted to accept payment for any activity or services rendered outside of the approved E-3. They are permitted to receive reimbursement for travel expenses/living expenses associated  with an activity. The international employee should keep a list detailing the expenses and how the money was applied in case they must prove 100% went towards travel and associated expenses related to this outside activity.

Can an international employee pursue green card while on E-3?

No. While on E-3 status, an international employee has to have the intent to depart the US. There is no dual intent while in E-3 status. If an international employee were to apply for permanent residency, they can have problems when trying to extend their E-3 status, such as their extension getting denied. The international employee can also have problems with traveling outside the US, such as being denied entry.

Can an E-3D dependent work?

E-3D spouses are eligible to work. They must apply for an Employment Authorization Document upon admission to the U.S. The E-3D spouse may not work until they have Employment Authorization Document in hand and the start date is effective.

Can an E-3D dependent volunteer?

It depends. An E-3D cannot volunteer for a for-profit company. An E-3D can volunteer for a nonprofit or local organization where everybody would in a similar position of volunteering and as long as the work would not otherwise be paid.

E-3Ds cannot volunteer at UF.

Can an E-3D dependent attend school?  

Yes. E-3D dependents may attend school.

How long can a dependent child be in E-3D status?

An unmarried child can be in E-3D status as long as they are under the age of 21 and their parent is maintaining their E-3 status.