The E-3 visa is a visa granted to Australian professionals for specialty occupations. The procedure of obtaining an E-3 visa is very similar to that of obtaining an H-1B visa; however, not everything is similar.
The requirements to obtain an E-3 visa are the same as those for an H-1B visa, with one difference; they include the attainment of a bachelor’s degree or higher and a job offer in a field of highly specialized knowledge, and most importantly the individual must be an Australian citizen. All of the forms used for an H-1B filing, are utilized in an E-3 filing; specifically, the LCA, and Form I-129.
With an E-3 visa, the validity period may only be granted for a term of two years; whereas, with the H-1B, the validity period is for a term of three years. Additionally, there is no automatic extension of work authorization while an E-3 visa extension application is pending. Individuals in E-3 status are not covered by 8 CFR 274a.12(b)(20), which provides authorization to continue employment with the same employer while a timely filed application for extension of stay is pending. Premium processing also does not apply to E-3 visa holders. Therefore, E-3 extensions of stay should be filed a full six months ahead of expiration. If an extension of stay application is pending when an individual’s current E-3 status expires, they must be taken off payroll until the petition is approved.
Another difference between the E-3 visa and the H-1B visa is that change of employer portability upon filing is not available to E-3 visa holders, as it is for H-1B visa holders. In fact, when an individual under E-3 status seeks to change his employer, he must exit the U.S., apply for a new visa pursuant to a new E-3 petition filed by the new employer, and then reenter the U.S. pursuant to the new visa to begin working for the new employer.
The American Immigration Lawyers Association (AILA) is currently working with government agencies regarding all of the issues addressed above.