Australia is one of the few countries in the world whose citizens have a unique United States work visa available only to their citizens. Australian citizens are the only nationality eligible to apply for an E-3 visa to work in the United States.
Understanding why it is such an advantage to have the E-3 visa available requires an understanding of how the main work visa categories of the United States work, and indeed the significant flaws and challenges involved with them.
The E-3 is closely related to the H-1B visa category, which is the main US visa category used by the rest of the world for employment of foreign nationals in the United States, however, the E-3 has several key points of distinction from the H-1B which make it a much more advantageous visa category for both employers and Australians seeking to work in the United States.
The E-3 visa is ‘Consular Direct’
The E-3 visa application process differs significantly from the H-1B and other work visa categories because it doesn’t require a “petition” to be lodged and approved by USCIS, the immigration benefits agency in the United States, before applying for the visa at a US Consulate abroad.
All US visas must be issued abroad at US Consulates, but most work visas require a USCIS-approved petition first. The E-3 visa does not. The petition process is where USCIS examines the merits of the proposed employment and whether it meets the requirements under the law. Not only does this process add costs and time (sometimes several months for processing), requiring government lodgement fees paid and applications mailed by post, it also adds scrutiny and risk to the process. USCIS has increasingly been pressured by political leadership to increase scrutiny and refusal rates of work visa petitions, and as such petitions increasingly receive “Requests for Evidence,” often with no basis, which adds time, cost, and risk of denial to the process.
On the other hand, the E-3 visa does not require any petition to be lodged with USCIS. Instead, the visa applicant (proposed employee) simply carries the application documents to their interview at the US Consulate and the merits and eligibility are assessed on-the-spot by the consular officer. A decision on the application is given verbally at the interview.
Consular officers do not generally make enquiries into or scrutinise the proposed employment in the same way that USCIS does. USCIS can often scrutinise the employer (Sponsor)’s business operations and ask for justification and rationalisation
What about the H-1B Lottery?
The H-1B program is “oversubscribed,” meaning that the annual demand for H-1B visas exceeds the annual cap of 65,000. As a result, USCIS operates a “lottery” system that selects proposed employees at random. If a proposed employee is selected in the lottery, the Sponsor can then proceed to lodge a petition on behalf of the proposed employee, which is subject to all of the pitfalls described above.
The lottery system creates significant uncertainty and unpredictability around eligibility for the E-3 visa. It means that employers cannot extend job offers with the reasonable confidence that their applicant will be able to even apply for an H-1B visa.
Further, the lottery system creates timelines which are also untenable for many companies. Even if selected in the H-1B lottery, which takes place only once a year in April, the applicant cannot enter the US and start employment with an H-1B visa until October 1 of that year.
The E-3 does not have a lottery system. Instead, applicants can make an E-3 application at a Consulate at any time of the year as long as they book a visa interview.
Adds up to Advantage for Australian Businesses
The E-3 visa provides a significant level of certainty and attainability over the other work visa types in the United States. This should be viewed as a significant advantage for Australian businesses that are doing business in, or expanding to, the United States.
Many foreign businesses directly invest in the United States by expanding and investing in operations there. This will include sales and business development, account management, research and development, and other functions.
Usually when foreign businesses invest in the United States, they seek to send their existing staff into the United States, for example to oversee their investment, service key accounts, manage the business, and/or recruit and train staff. When investing in another country to expand a business, it is not usually realistic to only hire locals as some level of knowledge transfer and supervision by skilled and experienced staff needs to take place in the new market.
For non-Australian businesses who lack access to a visa such as the E-3, it is sometimes not possible to transfer staff to the United States, or if it is possible, the process involves significantly higher costs, risks, and uncertainties.
The ability to quickly deploy trusted Australian staff to work in the United States’ branch office of an Australian business using the E-3 visa should be viewed as a significant strategic advantage for Australian businesses investing in the US versus other foreign competitors.
Any questions?
Hannan Tew Lawyers have partnered with an Australian based, experienced US immigration lawyer to specifically provide assistance to our Australian clients. Feel free to contact us us by email at [email protected] or phone +61 3 9016 0484 if you’d like some guidance or assistance with the next steps.
