Overview
Like TN status, E-3 status is based on a Free Trade Agreement and is available to citizens of certain countries only. E-3 status permits Australian citizens to come to the U.S. to work in a “specialty occupation.” 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 is equivalent) a s a minimum for entry into the occupation in the United States.” This is the same standard as applies to H-1B status. If a position does not require a bachelor’s degree or higher in a specific field and/or if the occupation does not generally require this, E-3 status is not an option even if the foreign national holds such a degree. As is the case with H-1B status, there is a wage requirement (that is identical to the H-1B wage requirement).
E-3 status can be obtained without the need to file a formal petition with USCIS, unless the foreign national is currently in the U.S. and is unable to travel. As a result, there are no required governmental filing fees and the application process can be significantly faster. (If a petition is filed for an in-country change of status or extension of status, a USCIS filing fee is required.)
E-3 status is employer and position specific. This means that employees in E-3 status may only be engaged in the activities described in the E-3 documentation. Please refer to the Changes, Transfers and Terminations section for more information on how to report any changes to the employment of an individual in E-3 status.
E-3 status can be awarded in increments of up to two years. Formally, there is no maximum period during which someone can hold E-3 status. However, individuals applying for E-3 status have the intent to depart the U.S. upon completion of their E-3 stay. However, E-3 status may not be denied solely on the basis of an approved request for permanent labor certification (PERM) or a filed or approved immigrant visa preference petition (e.g I-140). E-3 visa applicants are not required to maintain a foreign residence. See here for more information.
Requesting E-3 Status and Timeline
Whether a foreign national intends to obtain E-3 status by entering the U.S. on the basis of the required E-3 documents or intends to obtain it on the basis of a formal petition with USCIS, the requisite support documents and/or petition must be prepared by FSIS. To request these documents:
The hiring department must submit the standard H-1B/ TN/ E-3 Authorization Form. The E-3-process is significantly faster than the H-1B process, especially when the beneficiary will travel abroad to obtain E-3 status. How much time will be necessary depends on whether the foreign national will travel to obtain E-3 status or if a petition will be filed with USCIS.
- Requests for E-3 visa application packs – including a new LCA - for should be received 2-3 months prior to the requested start date.
- FSIS needs approximately a month to prepare an E-3 petition. Once the petition is submitted, USCIS normally needs about two months to make a decision on the application. However, USCIS does not guarantee this
Like individuals in H-1B status, employees in E-3 status may benefit from the 240-day rule.
Fees
For an overview of the various costs associated with an E-3 application as well as an overview of who may pay what costs, please refer to our section on fees and checks.
Dependents
The key benefit of E-3 status (beyond the faster process to obtain E-3 status), is that the dependent spouse in E-3S status, may be granted employment authorization. Effective 11/12/2021 -- see also this 3/18/2022 USCIS Policy Alert -- spouses in E-3S dependent status who have a valid I-94 record confirming their spousal E-3S dependent status may work without the need for an Employment Authorization Document (EAD). Spouses in E-3S dependent status may also choose apply for an EAD on the basis of which they may work. If a dependent spouse has an I-94 that indicates their E-3 status but does not confirm they are in spousal E-3S dependent status, an EAD is required.To apply for an EAD, the spouse in E-3S status must file an I-765, Application for Employment Authorization, with USCIS. All individuals in E-3 dependent status (including dependent children) may study.
If the E-3’s dependents are currently abroad, they can apply for their dependent visa on the basis on the E-3’s status documents and proof of their relationship (e.g. marriage or birth certificate). If the dependent is currently in the U.S. in a different immigration status, a Form I-539, Application to Extend/Change Nonimmigrant Status must be filed with USCIS. This form must be filed by the applicant him or herself. If FSIS is filing an application for the primary status holder, FSIS can file this I-539 with the main application. The $370 filing fee for the I-539 application is the responsibility of the applicant.