E-3 Visa Granted to Australian Citizen for Continuation of Employment with Advertising Agency

Getson & Schatz, P.C. successfully represented an advertising agency in securing an extension of E-3 status for 2 years for an Australian citizen employee. The employee was seeking to continue to be employed by the advertising agency in E-3 status on a temporary, full time basis in a specialty occupation involving public relations.

E-3 is a work authorized status that is only available to Australian Citizens. E-3 status is renewable indefinitely (in two-year increments) and the application process can be done directly at a U.S. Consulate without the need for prior USCIS petition approval. There is an annual quota of 10,500 E-3 visas but it is generally not reached which means that E-3 visas are an important consideration for Australian citizens desiring to live and work temporarily in the U.S. There are two steps in the process of applying for E-3 status. First, the employer submits a Labor Condition Application (LCA) to the Department of Labor for certification. The information required in the LCA is designed to establish that the employee will be paid the legally required wage and that other similarly situated workers will not be adversely affected. Second, either the employer files a petition with USCIS for a change or extension of E-3 status if the employee is already in the U.S. maintaining lawful nonimmigrant status or the employee files for an E-3 visa directly at a U.S. Consulate in Australia or another country that accepts and processes E-3 visa applications. To be successful, the petition/application for E-3 status must establish that the employee has at a minimum a U.S. bachelor’s degree or its equivalent in a specialized field and that the position to be filled requires a U.S. bachelor’s degree or its equivalent in a specialized field. Spouses of E-3 visa holders may obtain authorization to work in the U.S. without restrictions as dependents.

Unlike H-1B status, the filing of an E-3 extension petition with USCIS does not result in an automatic 240 day extension of work authorization while the petition is pending. Accordingly, those individuals holding E-3 status in the U.S. who wish to extend their E-3 status must either apply for an extension of status within the U.S. sufficiently in advance of the status expiration to avoid a lapse in work authorization or must arrange to extend E-3 status by applying for a new E-3 visa at a U.S. Consulate and then re-entering the U.S. to obtain a new 2 year work authorized status.

The employee wished to apply for an E-3 visa but did not want to return to Australia due to the cost of the flight and therefore wanted to apply for the E-3 visa in a “third country” where the trip would be shorter and less expensive.   The employee did not have an actual E-3 Visa in her Australian passport as she had originally entered the U.S. in F-1 status and subsequently changed status to E-3. Also, she had not left the U.S. since changing status and therefore had not been previously issued an E-3 visa at a U.S Consulate. As such, not every “third country” would accept her application because she had never been previously issued an E-3 visa.

For the convenience of the employee, our Philadelphia immigration attorneys contacted multiple U.S. Consulates and located a U.S. Consulate in the Caribbean that was able to process E-3 Visa extensions, even for applicants who had previously changed status to E-3 status while in the U.S. and had never been previously issued an E-3 visa in their Australian passport.

In order to prove the qualification requirements of the E-3 visa, Getson & Schatz worked with the employer to draft an Employment Letter in support of the E-3 visa extension application. The letter detailed that the public relations position requires theoretical and practical application of a body of highly specialized knowledge and attainment of a United States Bachelor’s Degree or its equivalent in Public Relations, Communications or a related field and that the educational background is vital to performing the job duties of the position being offered. A copy of the employee’s degree and academic transcript were enclosed with the application showing that the employee satisfied the requirements for the position. In order for the E-3 visa to be granted, Getson & Schatz needed to provide the U.S. Consulate evidence of the prior change of status from F-1 to E-3. Getson & Schatz provided evidence of this in the form of a certified copy of the Approval Notice of Form I-129 filed by the employer on the employee’s behalf granting her initial E-3 status.

Based on this information the U.S. Consulate issued the employee a 2-year E-3 visa and she entered the U.S. to resume her employment with same employer.