So after not writing to much about the E3 Visa in recent times, I thought I would do a brief post on the differences between the E3 visa and the H1B visa. The main reason for this post is to clear up a lot of the E3 Visa Myths and FAQs as well as be a response to a lot of the questions we get from everyone regarding the E3 visa itself.

1. The E3 visa is only for Australian citizens whereas the H1B visa is for citizens of virtually any country
The E3 visa was created a subsequent addon to US Immigration law f or the Australian-US Free Trade Agreement (AUSFTA) signed in 2005 allowing Australian citizens to more easily work in the US against the more strict and competitive process surround the H1B visa

2. The E3 visa is renewable every 2 years indefinitely as opposed to singular H1B instances which are renewable once in 3 year increments
So in theory the E3 visa is able to renewed forever and many people now are on their 3rd E3 Visa Renewal. However just because you are doing a specialized occupation, at a previously approved company and have no violations of your visa terms, does not mean you will automatically be eligible for E3 visa renewal as that is up to the USCIS or US Consulate assessing your case. In most cases you should be fine but due to the non dual-intent provision of the E3 visa and maintaining home residency, sometimes arbitrarily it can be a grey area.

3. The E3 visa has no Government mandated application costs and only requires a free filing to the US Department of Labor where as the H1B visa requires a petition to be submitted to the USCIS during a specified period and has associated costs.
So the H1B visa has many costs as opposed to the E3 visa (not even accounting for optional H1B lawyer fees or E3 Visa lawyer fees). The E3 visa requires the sponsor company to file Form ETA-9035(e) to the Department of Labor which is a free filing to get an approved Labor Condition Application (LCA) which the candidate needs to take to their US Consulate Interview to get the E3 visa stamp in the passport.
(NB: the only time a USCIS filing is required for a new E3 visa application, is when there is a transfer from another visa like the F1 Visa or J1 visa)

4. The E3-D Dependent Visa for spouses allows the spouse to work in the US
Unlike the H4 spouse visa for the H1B visa, the E3D Visa after filing for appropriate work authorization following entry into the US. It should also be noted that this working privilege does not extend to E3D dependent visa children under 21. The E3D visa holder does NOT need to be an Australian citizen.

5. The E3 visa is not specifically a dual intent visa
Unlike the H1B visa which allows for dual intent, at your E3 Visa US Consulate Interview, the candidate must prove they intend to leave the US at the end of their visa period and thus must prove significant ties to the home country. Now mistakenly people believe that this also means you can’t have your company sponsor you for a green card while on the E3 visa. This is NOT true as this is possible as the law states;

“An application for initial admission, change of status or extension of stay in E-3 classification, however, may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.”

However because of the dual intent provision, risks still may apply for a denial of your E3 visa when renewing with a pending Permanent Residency case. Many people have got Green Cards while on the E3 visa successfully so it certainly can and has been done.

6. The E3 visa does not have the portability provision explicitly stated
The H1B visa regulations has a provision that when candidates want to transfer employers, they can start working at their new employer while that application is still pending at the USCIS. This helps overcome the 10 day rule that an H1B visa (and indeed E3 visa) candidate is not allowed to be out of work in the US. For the E3 visa this portability provision is not explicitly stated, even though the E3 visa is supposed to follow the H1B rules where it is not written. However most people at the USCIS and indeed most US Immigration attorneys seem to interpret this as there being no portability provision for the E3 visa. Therefore because an application with the USCIS takes longer than 10 days to process, E3 visa candidates wanting to transfer employers either have to do it in advance while staying at their current employer or have to leave the US and get a new E3 visa for that new employer. (It should be noted the some E3 visa candidates have been told differently by the USCIS and others and have successfully started working at a new employer while their application was pending with no follow on issues)

CJ

The E3 Visa as you know is an extensive topic covered on this site and along with the Green Card, Green Card Lottery and H1B visa, are the most commonly asked questions on this site from our readers.
However lately we have noticed hat as the economy seems to be slowly waking up from its slumber in the US, many more Australians are asking questions as to how they can get to the US and find a job with an employer who will sponsor their E3 visa.

As we have covered that top extensively from the above links, we won’t rewrite the same information here but will try and an address some of the more common questions we are seeing lately and relate it as much as possible to the current economic climate for foreigners in the US.

So one of the more positive signs is that many foreigners who come to the US on an F1 Visa for Students for undergraduate, masters and PhD level degrees as their stepping stone to finding employment in the US have found their job prospects in recent months greatly improved. The greatest evidence of this comes from the H1B visa quota numbers which in our recent US Immigration December update which at the end of the US Immigration year on September 30, 2009 still had approximately 20,000 H1B visas unfilled. In recent years this quota has filled up in a matter of few days after the April 1 opening with even an H1B visa lottery, so this shows how much has changed in the 2009 climate of fear.

Well as of the latest update as we noted there is now only 2,500 left as the USCIS extended the time so the quota would be filled for FY2010. Most of these no doubt would have been taken up by students on F1 visas on their OPT who were already residing in the US. Job opening particularly in the skilled professional areas of Health, Education, Alternative Energy and Internet are high and even areas like Finance are picking up evermore.

However despite all this positive news, the challenge remains for Australians wanting to work in the US is that most of you are not in the US as a student or a J1 Visa Internship program, that yes while their are more opening and the market prospects are not as bleak that still doesn’t overcome the geographical and other hurdles of convincing a US employer to hire and sponsor you.

We have had recent questions from people asking about whether they could look for jobs that are completely different to their qualifications and/or experience. In general, this is possible, but you do not want to deviate to far as when you go for your US Consulate Interview, this may be a reason they could deny your visa if they deem their is little link between what you can offer and the job you will do.

Essentially the goal of hiring a foreigner as per the US Immigration language is to fill a role that they can’t find a suitable local to do. While this not necessarily what happens in practice, it is cited as a reason for denial when the candidate and job are seen as too far apart by the US Consulate.

People have also asked whether they could get 2 part time jobs on the E3 visa. This is certainly possible and an avenue that many people explore successfully. The additional requirement here is that each employer must file for ETA-9035(e) with the US Department of Labor to get an approved LCA. Then at your US Consulate interview you may have to answer questions as to how you will successfully navigate working for 2 companies simultaneously.

A couple of recent questions have also asked about the E3 Visa quota of 10,500 and whether it had been reached. Well there is no official tally anywhere and the only way to know for sure is to possibly try and ring the USCIS and see if they have a number. However in any particular year, we have not even got close that quota being fulled and not even sure if we have even got to the 60% full either. Additionally, extensions and renewals of the E3 Visa don’t count towards the quota and nor do the spouse or children dependent E3-D visas. Finally the quota resets each year on October 1. So this US Immigration year known as FY2011 has only just started.

Back to the challenge of finding employers from so far away. We created the E3 Visa Employer Database to try and help you for this as these are companies who are familiar with the E3 visa specifically and sponsoring foreigners as they have hired before so if contacting them or applying to open positions their it wont be as big a shock. However you may notice on many application forms that they ask whether you have work authorization as a question. The true answer to that question is NO as unless you have a working visa that allows you to work at a moments notice, then for that company to hire you they will have to do more than just hire you. Often it can pay to avoid those company as they usually reject outright if they are asking this question or if you are applying for a fairly standard (non highly specialized role) position, then it will be hard to stand out so much that they would hire a foreigner over an equally qualified US candidate given the simpler and quicker process.

Because of all this it can often pay to apply to smaller and medium size companies or contact people within companies directly and make use of recruiters which are a big part of US hiring culture at all levels. Use LinkedIn as a great resource to make contact with both recruiters and hiring people at companies you identify.

Finally as I have mentioned in other posts addressing this topic, be prepared to come to the US for interviews and pay some costs like travel to achieve your goal. It is rare you are going to be hired sight unseen and also that the first company that sees you will hire you, or that it will even be a one step interview process if you are going to be hired. I would say there would be a minimum of 3 contacts for a successful hire with one phone interview and 2 face to faces.

Again I wish you all the best and look forward to you posting your experiences here to help the community.

CJ