E-3 Australian Free Trade Agreement

GENERAL

The E-3 classification applies to nationals of Australia who are coming to the United States solely to perform services in a specialty occupation. The E-3 classification also applies to the principal’s spouse and children.

QUALIFYING EMPLOYEES

The term “specialty occupation” is defined in the Immigration and Nationality Act (INA) section 214(i)(1). Generally, a specialty occupation is one that cannot be performed without a bachelor’s degree or higher (or its equivalent) in a specific field of study or a narrow range of fields of study. The requirements for E-3s with respect to the education of the beneficiary and the job duties to be performed mirror the H-1B requirements, and are found in 8 CFR §214.2(h). General documentary requirements for H-1Bs, and therefore E-3s, can be found in 8 CFR §214.2(h)(4)(iv).

FILING PROCEDURE

If the foreign national is legally present in the United States, a petition may be filed with the USCIS Service Center having jurisdiction over the intended place of employment. If the foreign national is abroad, the application is made directly at the consulate, similar to other nonimmigrant classifications, such as the B-1/B-2 or F-1 classification. However, a Labor Condition Application that reflects the job offer at the appropriate prevailing wage rate, is required as part of the E-3 application.

ANNUAL QUOTA

Congress has specified a maximum number of 10,500 new E-3 visas per fiscal year. Since the passage of the E-3 legislation, the quota has never been reached.

TERM OF ADMISSION

The term of admission for E-3s is the same as E-1s and E-2s, in that the initial period of admission is two (2) years. E-3s will receive two (2) year extensions indefinitely so long as they otherwise continue to qualify for the E-3 classification.

DEPENDENTS IN E-3 STATUS

Spouses of E-3 principals are not required to be Australian nationals, and, pursuant to INA section 214(e)(6), are eligible to apply for work authorization in the United States. Such spousal employment may be in a position other than a specialty occupation. This is an advantage over the H-1B; i.e., a dependent H-4 spouse cannot obtain permission to work while in H-4 status.