E-3: Australia Specialty Occupation
The “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005” (P.L. 109-13) was enacted on May 11, 2005, and created a special E-3 nonimmigrant classification. The E-3 classification applies exclusively to Australian citizens who are temporarily entering the U.S. to work in a “specialty occupation.”
A “specialty occupation” is one that requires theoretical and practical application of a body of highly specialized knowledge, and one that requires a bachelor’s degree or higher (or its equivalent) in that specialty as a minimum qualification for entry into the occupation. This is the same standard that governs eligibility for H-1B status. Like the H-1B, an E-3 petitioning employer must obtain a certified Labor Condition Application and must comply with regulations regarding payment of the required wage, maintenance of public access files, provision of notice to employees, and other requirements.
One of the primary benefits of the E-3 classification is the rapid processing time. An application for an E-3 visa can be made directly with the U.S. embassy or consulate. Alternatively, an Australian citizen who is already physically present in the U.S. in lawful nonimmigrant status can be the beneficiary of a petition filed by a sponsoring employer with U.S. Citizenship and Immigration Services to change his or her status to E-3 status.
E-3 visas have an annual quota of 10,500 per fiscal year. The spouse and unmarried children under the age of 21 of E-3 visa holders are eligible to apply for E-3D dependent status and accompany the E-3 visa holder to the U.S. The dependent spouse and children of an E-3 visa holder do not have to be Australian citizens, and dependent E-3D visas are not included in the annual quota of 10,500 annual E-3 visas. Dependent E-3D spouses are also eligible to apply for employment authorization after arriving in the U.S.
While there is an annual quota for E-3 visas issued to individuals who do not currently hold E-3 status, there is no limitation on how long a person can remain in the U.S. in E-3 status. E-3 status can be approved for an initial two-year period, and may be extended in two-year increments for an indefinite period of time. An E-3 status holder, however, must maintain a foreign residence abroad and intend to return to the foreign residence at the end of the authorized period of stay. A prolonged stay in the U.S. in E-3 status may give rise to a presumption that the E-3 status holder intends to remain in the U.S. as an intending “immigrant,” and this could lead to the denial of future applications for E-3 extensions of stay. E-3 status is intended for temporary employment only.
An E-3 status holder may obtain a new period of E-3 admission by applying for a new E-3 visa at a U.S. embassy or consulate, or may extend his or her E-3 status by filing an application for an extension of stay with the U.S. Citizenship and Immigration Services . Extension requests may be filed as early as six months before the current stay expires, and should be filed as far in advance of the E-3 expiration as possible. Individuals with E-3 status are not permitted to continue working while the E-3 extension application is pending unless the current stay remains unexpired.