HR Guide: E-3 Visa Process & Processing Times
Updated: Aug 6
E-3 visas are fairly straight forward, usually, but the pandemic has made the logistics of this visa more complex. As the embassies still deal with backlogs, the movement of employees on E-3 visas has become more restrictive, whether you are hiring an employee on the visa for the first time, filing a renewal or sponsoring someone already on E-3 to transfer over to your company.
Let's start at the basics and we'll try to delve into the deeper corners of this process to figure out how best to handle this process given today's long wait times at the embassy.
Q - What is an E-3 visa?
The E-3 visa is a "Speciality Occupation" visa for citizens of Australia. Think of this as an H-1B visa but just for Australian citizens. There is no lottery or quota that you have to worry about for this category.
Q - What is considered a "Speciality Occupation"?
A speciality occupation is a job that requires at least a 4 year bachelor's degree or similar academic experience. An employee's lack of academic experience can often be compensated by their work experience. For example, someone with no bachelor's degree and with 5+ years of work experience may be considered an employee with specialized skills.
Note - the job must be directly related to the candidate's field of expertise.
Q - How is E-3 different from H-1B visa?
While the E-3 visa is very similar to the H-1B visa in its requirements on candidate qualification, there are some notable differences that the employers should be aware of -
No Lottery - there is an annual quota of 10,500 E-3 visas. Since there are not as many applicants, this means that the candidate can get the visa throughout the year without having to wait for a lottery period like with H-1B visas.
No petition requirement - unlike the H-1B visa which can only be granted by the USCIS, the E-3 visa can be granted by U.S. embassies/consulates or USCIS. Therefore, you can file the E-3 visa just as an H-1B is filed - LCA >> Petition >> Approval >> visa stamping OR you can simply skip the petition step and the candidate can directly take the approval LCA to the U.S. consulate/embassy in their home country and get a visa approval and stamp.
Eligibility to work - The E-3 visa is awarded for 2-years unlike an H-1B visa, which is awarded for 3-years. But an E-3 visa can be renewed indefinitely unlike an H-1B visa, which has a term limit.
Can't start work on receipt notice - Unlike in the case of an H-1B visa, the candidate cannot start working for the new employer one receipt notice and has to wait for the approval to start work.
Q - What is the time difference between filing with USCIS vs at the embassy?
Petition through USCIS
2-4 weeks, if filed with Premium Processing
Visa interview at the U.S. Consulate/Embassy
1-3 weeks, depending on the U.S. embassy
Note - that this time frame can be anywhere from 3 - 10 weeks these days because the embassies have huge backlogs due to Covid.
Q - Is the E-3 visa eligible for Premium Processing?
USCIS on Feb 24, 2021 expanded the Premium Processing services to the E-3 visas because of the huge backlogs that the embassies were facing. So, now the E-3 visas are eligible for premium processing if you decide to file the petition with USCIS.
Note - this new service extension has no bearing on the processing times and backlogs at the U.S. consulates/embassies.
Q - Do I need to pay Prevailing Wage for an E-3 visa?
Yes, the E-3 visa goes through the same steps as the H-1B visa and needs approval from the Department of Labor that the employer will meet the Prevailing Wage requirements.
Q - What are the benefits of an E-3 visa?
The biggest benefit is that you don't have to wait for the lottery. The visas are available year-round, so the Australian national can start working with you within 7-30 days on the E-3 visa depending on whether you file the petition with USCIS or the U.S. consulate.
Q - What are the downsides of an E-3 visa?
As an employer, the only downside is that there is no end to the renewals for the E-3 visas since there is no path to citizenship. With that said, the E-3 renewals are less expensive than the H-1B renewals because you don't necessarily pay for premium processing and for filing a petition. So, even if you pay for the employee to fly out to get a visa renewal at a U.S. embassy/consulate, it should cost the company less than filing the petition here in the U.S.
Q - Can the candidate start working for us on receipt notice?
Nope. Unlike the H-1B, the E-3 beneficiary (candidate) cannot start working for your company on a receipt notice. They can only start working once the petition is approved.
Q - What are the documents needed to file an E-3?
The kind of documents that you would need depend on whether you are applying for the visa with USCIS or with a U.S. Embassy/Consulate -
File with USCIS -
Approved Labor Condition Application (LCA)
Employer Support Letter
H-1B petition (G-28 & I-129)
Premium Processing (I-907)
File with the U.S. Embassy/Consulate -
Employer Support Letter
Q - What steps do I need to take to sponsor someone on E-3?
STEP 1: Confirm Prevailing Wage with your immigration counsel
STEP 2: File Labor Condition Application (LCA)
STEP 3 - Option 1: Candidate fills out the DS-160 and schedules a visa interview with a US embassy/consulate
STEP 4 - Upon visa approval, the candidate can come to the U.S. 10 days before the
start date of employment.
STEP 3 - Option 2: Employer files the petition with USCIS
STEP 4 - Upon visa approval, the candidate books their visa appointment with the
I-797 at the US embassy/consulate
Q - What is the fastest way to get a new E-3 approved?
Option 1: Candidate is outside the U.S.
If the candidate is outside the U.S. then you may want to ask them to fill out the DS-160 and start looking for visa appointment dates.
Note that they may qualify for a drop box appointment but that may not be the fastest way to get the visa. At times going through the visa appointment can get the visa faster.
Since the visa appointments are far and few these days, it makes sense for the candidate to start looking at the appointment slots as early as possible.
Because the employee is outside the U.S., the fastest way would be to get the visa stamped at the embassy and not go through USCIS.
Why? Because even if you get a visa approved through USCIS, the candidate still has to get a visa appointment scheduled to get the visa stamped, which puts you back into the same cycle.
Option 2: Candidate is in the U.S.
If the candidate is in the U.S. then the fastest way, given the backlogs, may be to file for a change of status in the U.S. and file the entire petition with USCIS.
Note it is a good idea to ask the candidate to look for interview slots with embassies. If they are lucky, they may be able to find a slot and get a visa faster than it would take you to ready the petition and file with USCIS, even with premium processing.
Q - What is the fastest way to get an E-3 renewal approved?
If you are filing for a renewal, the fastest way may be to file for the renewal with USCIS and not send the employee outside the US for visa stamping. Here's why -
Since the visa renewals can be filed up to 180 days before the expiration, this gives you enough time to file with having to pay for premium processing
Once the renewal is filed, the employee gets an automatic 240 days extension from the date of their visa expiration
Q - What is the fastest way to get an E-3 transfer approved?
For E-3 transfers, the fastest way might be to file the petition with USCIS and not send the candidate outside the US for visa stamping.
Note, however, that it may make sense to ask the candidate to keep looking for visa appointments once you initiate the LCA. This is because the candidate may get lucky and could find an earlier opening than the time it would take to get the approval back from USCIS. I'd keep looking until the immigration counsel ready's the petition to be filed with USCIS.
Have more questions on E-3 visas? Please reach out to us at email@example.com and we'll be happy to answer them for you.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.