Federal regulations implementing the new E-3 visa were promulgated in the Federal Register on September 2, 2005. With the publication of these regulations, Australians citizens may now file E-3 applications directly at U.S. Consulates in Australia, or anywhere else around the world.  The U.S. Consulate in Sydney has recently made available to Jackson & Hertogs its FAQ on the subject, which may be accessed from our website.

The E-3 visa is similar to the H-1B1 Free Trade Agreement visa established last year for citizens of Chile and Singapore.  The E-3 category makes available 10,500 new employment visas for Australian nationals working in a professional occupation, and who possess at least a U.S. Bachelor's degree or its foreign equivalent.  However, unlike the H-1B1 Free Trade visa for citizens of Singapore and Chile, the 10,500 E-3 visas are not deducted from the annual H-1B visa cap of 65,000.

Employers wishing to utilize the E-3 visa will be required to first obtain an approved Labor Condition Application (LCA) from the U.S. Department of Labor.  However, they need not obtain an approved petition from U.S. Citizenship and Immigration Services (USCIS). Instead, after obtaining an approved LCA, the E-3 candidate can apply for the E-3 visa directly at a U.S. Embassy/Consulate abroad.  Individuals currently in the United States in some other lawful nonimmigrant status will also be able to change status to E-3 while remaining in the United States.  Please note that LCAs filed for E-3 visas must be mailed to the DOL, and cannot be sent through the Internet via electronic filing.  J&H has experienced significant delays in receiving responses from DOL on LCAs for E-3s.

Similar to the existing E visas for Treaty Traders and Treaty Investors, the E-3 visa for Australian professionals is renewable indefinitely, and accompanying spouses will be eligible to apply for U.S. work authorization.  Unlike the other E visa categories however, only the citizenship of the employee, not the employer, need be Australian.

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