E-3 Visa Lawyer for Australian Professionals

Who qualifies for an E-3 visa

The E-3 is a work visa only for citizens of Australia. In general, you need:

• Australian citizenship (your spouse and children don't need to be Australian);
• a real job offer from a U.S. employer, in a specialty occupation: a job that normally requires at least a bachelor's degree in a specific field;
• that degree, or its equivalent, in a field related to the job;
• a certified Labor Condition Application (LCA) filed by the employer;
• any state license the job requires; and
• a plan to leave the U.S. when your E-3 status ends.

Sources: INA 101(a)(15)(E)(iii); INA 214(i)(1); 22 CFR 41.51(c); 9 FAM 402.9-8; USCIS, "E-3 Specialty Occupation Workers from Australia."

H-1B1 visa lawyer for Chile and Singapore

The H-1B1 is a work visa for citizens of Chile and Singapore, created under U.S. free trade agreements with those countries. It is a separate category from the H-1B, with its own annual numbers and its own rules on how long you can stay.

Who qualifies for an H-1B1

• Chilean or Singaporean citizenship;
• a job offer from a U.S. employer in a specialty occupation, using the same test as the H-1B;
• a bachelor's degree or its equivalent in a related field, or, for a few listed jobs, the alternative credentials described below;
• a certified LCA marked "H-1B1 Chile" or "H-1B1 Singapore"; and
• a temporary stay: the H-1B1 does not allow "dual intent," so you must show you don't intend to stay permanently.

For a few jobs, the trade agreements accept other credentials instead of a matching degree: management consultants and disaster relief claims adjusters (Chile and Singapore), and, for Chilean citizens only, agricultural managers and physical therapists.

Applying and extending

From outside the U.S., you apply for the H-1B1 visa at a U.S. embassy or consulate with the certified LCA and your job offer. No USCIS petition is needed first. If you're already in the U.S. in another status, the employer can file Form I-129 with USCIS to change or extend your status.

H-1B1 status is granted for 1 year at a time and can be extended only in 1-year increments. After every second extension, the employer needs a newly certified LCA. Each extension depends on your still being eligible, including showing the stay remains temporary. A new employer needs its own certified LCA and a new filing.

Sources: INA 101(a)(15)(H)(i)(b1); INA 214(g)(8); INA 214(i)(3) (8 U.S.C. 1184(i)(3)); 9 FAM 402.10-5(C), (D), (E)(b), (F).

The job offer and your degree

For both visas, the job has to really need degree-level knowledge in a specific field, and your degree has to fit it. An engineering degree for an engineering role is a clear match; a general business degree for a technical role may need more explanation. Foreign degrees are often reviewed for U.S. equivalence. In some cases, a combination of education and work experience can count as the equivalent of a degree.

The job offer letter should describe the duties and the pay, and show that you'll be paid at least the wage on the LCA.

Sources: INA 214(i)(1); 8 CFR 214.2(h)(4)(iii); 22 CFR 41.51(c)(1)(iv); 9 FAM 402.9-8; 9 FAM 402.10-5.

The Labor Condition Application (ETA-9035)

Before you apply, the employer files a Labor Condition Application, Form ETA-9035 or 9035E, with the U.S. Department of Labor, marked for E-3 Australia, H-1B1 Chile or H-1B1 Singapore. In it, the employer attests that it will:

• pay the higher of the actual wage for the job or the prevailing wage in the area;
• provide working conditions that won't adversely affect similar U.S. workers;
• confirm there's no strike or lockout at the worksite; and
• give notice of the filing at the worksite.

The certified LCA goes with your visa application or your employer's USCIS filing. An E-3 visa can't run past the LCA's validity period.

Sources: INA 212(t)(1); 20 CFR part 655, subparts H and I (see 20 CFR 655.700); 9 FAM 402.9-8; 9 FAM 402.10-5(D).

How long you can stay: E-3 vs H-1B1

Sources: USCIS, "E-3 Specialty Occupation Workers from Australia"; 9 FAM 402.9-8; 22 CFR 41.51(c)(1)(vi); INA 214(g)(8)(C); 9 FAM 402.10-5; INA 214(b), (h).

Annual limits

• E-3: 10,500 visas a fiscal year. The limit counts only principal workers getting E-3 status for the first time or with a new employer. Spouses and children don't count, and renewals with the same employer you've worked for without a break don't count.
• H-1B1: 1,400 a fiscal year for Chile and 5,400 for Singapore. These numbers come out of the overall H-1B limit, and unused numbers go back to the H-1B pool.

Sources: INA 214(g)(11)(B); INA 214(g)(8)(B); 22 CFR 41.51(c)(2); 9 FAM 402.9-8; 9 FAM 402.10-5.

E-3: applying at a consulate or from inside the U.S.

Outside the United States: consular processing

Most Australians apply for the E-3 visa at a U.S. embassy or consulate, with the online DS-160 form, the certified LCA, the job offer letter, and evidence of the degree. No USCIS petition is needed first.

Already in the United States: change of status

If you're already in the U.S. in another valid status, your employer can file Form I-129 with USCIS to change your status to E-3, or to extend it. You'd still generally need an E-3 visa the next time you travel abroad and return.

Changing employers

A new employer needs its own certified LCA and a new filing. USCIS says the new employer's I-129 must be approved before you're authorized to work for it.

Sources: USCIS, "E-3 Specialty Occupation Workers from Australia"; Form I-129 instructions; 9 FAM 402.9-8.

Spouses and children

• E-3 families: your spouse and unmarried children under 21 can come in E-3 dependent status. Spouses in valid E-3 or E-3S status are employment authorized incident to status. Since January 30, 2022, USCIS and CBP have issued spouses I-94 records marked "E-3S," which employers accept as work-authorization evidence. A work permit (EAD) is optional, not required. Children can't work.
• H-1B1 families: your spouse and unmarried children under 21 can come with you in H-4 status. Ask us about your family's situation on the intro call.

Sources: USCIS Policy Manual, Vol. 10, Part B, Ch. 2 (policy effective Nov. 12, 2021); USCIS, "E-3 Specialty Occupation Workers from Australia"; 9 FAM 402.9-9; INA 214(e)(2) (8 U.S.C. 1184(e)(2)); INA 101(a)(15)(H).

How Farmer Law PC works with you

Our experienced attorneys offer a free 15-minute intro call to E-3 and H-1B1 workers and the employers hiring them.

Farmer Law PC also helps with E-3 and H-1B1 extensions, job changes and Labor Condition Application (LCA) preparation. Here's how it starts:

• A free 15-minute intro call with a lawyer. We learn about the job and your background and explain what happens next.
• Clear next steps. If you'd like to work with us after the call, we explain the scope of the work before anything begins.
• One responsible attorney. Kyle Farmer is the attorney responsible for this page. Farmer Law PC is based in Austin, Texas. Call (512) 588-5909.

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