WHAT IS E-3 Status?
The E-3 is a non-immigrant visa status that is employment based. It is designated for nationals of Australia to temporarily work in a specialty occupation in the U.S.
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HOW LONG CAN I HOLD E-3 STATUS?
You can hold E-3 status indefinitely. There is no maximum number of years that a person may remain in E-3 status. The employer can petition for E-3 status for you for up to 2 years at a time, however, your department may choose to petition for less than 2 years at a time.
WHO IS ELIGIBLE?
The E-3 is for nationals of Australia only.
Like the H-1B, E-3 status is designated for nationals of Australia coming temporarily to the United States to work in a specialty occupation. A specialty occupation is defined as a job that requires “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement.” The hiring department must provide documentation to prove that the job requires someone with special qualifications and that the foreign national meets those qualifications.
If the University files to change your status to E-3 in the U.S., the United States Citizenship and Immigration Services (USCIS) makes the final decision on whether you qualify for the E-3 visa classification. Like the H-1B, the E-3 status is employer specific, which means that a USCIS approved petition submitted by UW-Madison authorizes you to work only in the position specified in the petition in Madison. Employment outside the scope of that petition, even at another department at UW-Madison, may require additional authorization from USCIS. If you have an E-3 approval from another employer, you are not automatically eligible to work at UW-Madison. An E-3 worker may work for more than one employer at the same time, but each employer must file a separate E-3 petition.
If you are outside the U.S. and petition to enter the U.S. in E-3 status (instead of filing a change of status inside the U.S), the U.S. Consulate or Embassy you visit to obtain your E-3 stamp makes the final decision on whether the individual qualifies for the E-3 visa classification.
WHO IS NOT ELIGIBLE?
The E-3 is not appropriate for anyone who is not a national of Australia.
Like the H-1B, the E-3 is not appropriate for visitors, unpaid positions, degree-seeking students, or training positions.
Individuals receiving fellowship income are not subject to income and FICA tax withholding as they are being provided funding to aid in the pursuit of study or research. Since this is not considered remuneration for services being provided to the University, they are not eligible for E-3 status.
Positions at UW-Madison that do not require, at minimum, a bachelor’s degree in a particular field are also not eligible for E-3 status. Therefore, most University Staff positions do not qualify for E-3 sponsorship.
Spouses and unmarried children under the age of 21 of E-3 visa holders are considered dependents and are eligible for E-3D status. E-3D visa holders are only eligible to stay in the U.S. while their E-3D spouse or parent is in the U.S.
E-3D visa holders do not need to be nationals of Australia.
E-3D spouses can work, as long as they have an I-94 with a class of admission code of E-3S. This guidance was updated in January 2022. For more information: USCIS Updates Guidance on Employment Authorization for E and L Nonimmigrant Spouses. Additionally, E-3D spouses can still apply for employment authorization with USCIS if their I-94 does not have the appropriate class of admission code of E-3S.
E-3D children cannot work.
E-3D visa holders may study in the United States, full-time or part-time, for the duration of the E-3’s period of stay.
E-3s may enter the U.S. up to ten days before the start date of employment, and may remain in the U.S. for up to ten days after the end of employment, if their current I-94 grants an additional 10 days.
You cannot work or “volunteer” to work during the grace period.
HOW DO I REQUEST E-3 STATUS?
The sponsoring UW Department initiates the request to sponsor an E-3, once it is determined whether or not the position is eligible for sponsorship and that the foreign national meets all eligibility requirements for the position and status.
There are two ways to obtain or extend E-3 non-immigrant status:
- Outside the U.S. (most common)
Obtaining or extending E-3 status while outside the U.S. requires only Steps 1 and 2 below. No petition is filed with United States Citizenship and Immigration Services (USCIS) (no Step 3, that is). Once Steps 1 and 2 are completed, the employee takes the certified Labor Condition Application (LCA) to a U.S. Consulate or Embassy abroad and applies for the E-3 visa stamp.At the consulate/embassy, the employee will have to demonstrate that they:
- Are a national of Australia
- Have a legitimate offer of employment in the U.S. (for example: an offer letter from the UW employing department or employment verification letter)
- Possess the necessary academic or other qualifying credentials (for example: CV/resume, degree certificate, or transcripts)
- Will fill a position that qualifies as a specialty occupation (for example: a position description, copy of certified LCA)
- Inside the U.S. (less common)
Filing a petition to obtain or extend E-3 status inside the U.S. is very similar to the H-1B process. To start the E-3 process inside the U.S., you should complete Steps 1 -3 (below) and email the forms to the International Faculty and Staff Services office (IFSS) at firstname.lastname@example.org. We will accept one form at a time, a few at a time, or all forms at the same time; whichever is easier for you.
STEP 1 – DETERMINING THE WAGE
The first step in the E-3 process is to determine the minimum wage the UW must pay the employee for the position according to the United States Department of Labor wage survey. IFSS can determine the wage once the following forms are received:
- Prevailing Wage Form (ETA-9141)
- Actual Wage Form
- If applicable, please provide a copy of the position vacancy listing (PVL) (not required for positions the UW does not require a PVL)
When the wage determination is completed, IFSS will email the Department Contact a final wage determination with directions on how to proceed. We can complete the wage determination before you offer the position to anyone.
In rare circumstances, IFSS may not be able to determine the wage. If this happens, we will need to submit a request to the Department of Labor (DOL) to make the determination. This can take 3-5 months and will still require IFSS to have all forms above to proceed. Keep in mind, this could significantly delay your anticipated start date. There is currently no way to expedite the DOL wage determination. We will try our best to internally determine the wage and not through DOL.
Once you have made the offer to the individual for whom you are sponsoring the E-3, submit the following:
- Department Request Form. Be sure to fill in all relevant information. If an employee has held a position at the UW before, look up the Empl ID in HRS and include that on the form. Questions on this form should be directed to email@example.com.
You may also, at this time, send following form to your applicant/employee so he or she can start gathering the required documentation needed for Step 3:
- Employee Intake Form (formerly the Beneficiary Information Form). A checklist of required documentation is on the last few pages of this form.*When obtaining of extending E-3 status outside the U.S., even though we don’t do Step 3, please have your employee still complete the Employee Intake Form again and submit relevant documentation so that we can verify the employee is still eligible for E-3 status since there is no external USCIS review.
Don’t forget to request the filing fees at this time! See below.
STEP 2 – FILING THE LABOR CONDITION APPLICATION (LCA)
The UW must submit a LCA to the DOL attesting to compliance with the requirements of the E-3 program. IFSS can file the LCA once Step 1 is completed and the following form is received:
- Labor Condition Application (LCA) Authorization Form*
Once the LCA is filed, IFSS will email the Department Contact the LCA. The LCA must be posted in ALL the locations the employee will work. The LCA should be posted where other employee notices are posted. The LCA does not contain any information about the employee specifically, only general information about the position for which you are filling. IFSS will also post a copy of the LCA in the main OHR office located at 21 N. Park Street in Suite 5101.
*If the employee will work in more than one location on a regular basis, please include all work locations on this LCA. If additional work locations are added, please consult IFSS immediately.
LCAs cannot be submitted more than six (6) months before the start date of the period of employment.
STEP 3 – PREPARING THE E-3 PETITION
This is the bulk of the petition if you are obtaining or extending E-3 status inside the U.S.
This step is NOT required if the employee is obtaining or extending E-3 status outside the U.S.
You will need the Employee Intake Form (see Step 1) and the employee’s documents to complete this step. IFSS can review and prepare the final E-3 petition, once the following forms are received:
NEW! Forward the following forms and documents to IFSS (PDF only). It is preferred that you share these documents using Box:
- Department Request Form (if you haven’t sent this to IFSS already)
- Employee Intake Form
- Copies of all the employee’s documentation (including any dependent documentation, if applicable—see Dependent section below). Refer to these checklists for documentation that is required (NOTE: these are H-1B checklists, but the documentation is the same for the E-3 so they are still applicable):
- UPS or FedEx mailing label so that IFSS can securely mail the petition to USCIS. See below for mailing options and addresses.
DEPENDENTS (E-3D STATUS)
For immigration purposes, dependents are the legally married spouse and/or any children under the age of 21.
The Form I-539 is only needed if the employee’s dependents are inside the U.S. and need to obtain or extend E-3D status.
- Form I-539
- Suggested documentation to include with the I-539 application can be found in the Employee Intake Form.
- Filing fee
- Paid by the employee and cannot be reimbursed by the UW
- Personal check or money order from a U.S. bank, made payable to U.S. Department of Homeland Security.
Dependents who are outside the U.S. do not need to file the I-539. These dependents obtain E-3D status by requesting a visa appointment at a U.S. Consulate/Embassy and presenting the certified LCA or employee’s approval notice (the I-797A or B) along with the marriage certificate (for spouses) or birth certificate (for children under the age of 21).
IMPORTANT: IFSS cannot advise on the Form I-539 since it is the employee’s family member(s)’s personal petition. We cannot give legal advice to an employee’s family member(s). As a courtesy to the employee, we will send the Form I-539 with the supporting documentation along with the employee’s E-3 petition only. We will not review the I-539 for completeness or for errors. We will not submit the I-539 if we are not filing an I-129 petition for the employee. The I-539 can be filed separately from the employee’s E-3 petition. If your employee’s dependent(s) would like assistance on the I-539, please direct them to an immigration attorney. IFSS can provide a list of local attorneys, if requested.
NOTE: if obtaining or extending E-3 status outside the U.S., there are no filing fees. The employee should be aware that there will be consular fees, however, just like any other application to obtain a visa stamp. Those fees are not reimbursable through the UW; they are personal fees the employee must pay.
If obtaining or extending E-3 status inside the U.S.:
- All checks must be separate and payable to: US Department of Homeland Security
- To request a check through Accounting, follow the normal procedures in your Department.
All check requests must be accompanied with this pre-signed Check Custodian Form. Accounting Services will contact IFSS to pick up the checks when they are ready.
Standard Processing Fee
- Filing fee
- Required for all petitions
- University check only
Premium Processing Fee:
This additional fee will guarantee that USCIS will make a decision in 15 calendar days. Be aware, this fee does not shorten the amount of time IFSS needs to process the request.
Note: This does not guarantee approval. A decision can come in the form of an approval, a Request For Evidence (RFE), a Notice of Intent to Deny (NOID), or a denial. We will reach out to the hiring unit immediately if the decision received is an RFE, NOID, or denial.
To request premium processing, please provide IFSS with the following:
- Premium Processing Form
- For business related reasons, the hiring unit should sign the form.
- If there is no a business related reason, some employees may be able to pay for premium processing on their own (if they choose to do so; we cannot require any employee to pay for this fee). Please consult IFSS so we can check the employee’s eligibility to pay this. For personal requests, the employee should sign the form.
- We can upgrade to premium processing at any time. It is not required to be submitted with the initial petition.
- Consult IFSS if you have questions regarding this.
- $2,500 filing fee (in addition to the above Standard Processing Fee)
- For business related reasons: UW check only.
- For personal reasons: a personal check or money order from a U.S. Bank is acceptable.
MAILING THE PETITION
MAILING THE PETITION
NOTE: For those employees obtaining or extending E-3 status outside the U.S., a mailing label is not needed.
Preferred couriers that pick up daily at 21 N. Park Street already (no need to schedule a pick-up):
USCIS Vermont Service Center
Attn: I-129 E-3
75 Lower Welden Street
St. Albans, VT 05479-0001
US Postal Service
IFSS will prepare the mailing label for these shipments.
Fill out the Amendment Petition Determination Form. IFSS will evaluate whether or not we need to notify USCIS before those changes can occur.
NOTE: USCIS will not retroactively approve changes, so it’s very important to notify us at least 1-2 months prior to changes occurring.