An E-3 case turns on seven elements. Three of them concern the person applying, two concern the job, and two are the employer’s responsibility. They come from a small set of provisions — section 101(a)(15)(E)(iii) of the Immigration and Nationality Act, the specialty-occupation definition at INA 214(i)(1), and the attestation requirement at INA 212(t)(1) — and every E-3 application is measured against them.
- Australian nationality. The classification is open only to nationals of the Commonwealth of Australia. Permanent residence in Australia is not enough, and the nationality must belong to the person taking the job; accompanying family members derive their status from the principal worker rather than from their own citizenship.
- A genuine offer of employment in the United States. There must be a real position with an employer who is prepared to take on the obligations described below.
- A position that qualifies as a specialty occupation. Under INA 214(i)(1) the occupation must require both the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent, as the minimum for entry into the field. This is the same standard the H-1B uses, and it is stricter than the test that applies to Chilean and Singaporean H-1B1 workers.
- Credentials that match the position. The worker must hold the degree the occupation requires, or a qualifying equivalent built from education and experience. The credentials have to fit the particular job offered, not the field in general.
- Any license the occupation requires. Where state law conditions practice on a license or other official permission, that authorization has to be in place. USCIS ties the requirement to the point at which employment begins; consular posts commonly expect to see the license, or a credible plan for obtaining it, when the visa application is decided.
- A certified labor condition application. The employer files Form ETA 9035 or 9035E with the Department of Labor, attesting under INA 212(t)(1) that the position will pay the higher of the actual wage paid to comparable employees or the prevailing wage for the occupation in the area, that working conditions will not be adversely affected, that no strike or lockout is under way in the occupation at the place of employment, and that notice of the filing has been given to the bargaining representative or posted for employees. The Department of Labor certifies the application under 20 CFR 655.740(a) — it is certified rather than approved, and the distinction matters, because certification is a review of completeness and accuracy on the face of the form rather than an adjudication of the merits. Under 20 CFR 655.750(a) an E-3 labor condition application may not run more than two years.
- An intention to stay only temporarily. INA 214(b) presumes every applicant to be an intending immigrant until the contrary is shown, and the E-3 gets no relief from that presumption: the dual-intent protection at INA 214(h) extends to the H-1B, the L and the V, but not to the E-3. The applicant must therefore be able to satisfy the officer of an intention to depart when the authorized employment ends.
The order in which they arrive. These are not seven parallel steps. The certified labor condition application comes first in time, because nothing can be filed or applied for without it. Once it is in hand, a worker abroad applies directly at a U.S. consular post, and a worker already in the United States who is changing status, extending stay, or changing employers files Form I-129 with USCIS under 8 CFR 214.1(c)(1).
What the list does not include. There is no petition requirement at the front end of a consular case, and so no waiting for USCIS approval before applying. There is no labor market test or recruitment obligation of the kind that immigrant labor certification demands; the employer’s attestation is the whole of it. And there is no lottery: the annual limit of 10,500 is counted as initial applications are approved through the fiscal year, so the practical question is availability at the time of application rather than selection in advance.
Each element is taken up in more detail elsewhere in this section: what counts as a specialty occupation, the licensing question, the residence-abroad and temporary-intent question, the annual quota, and how long an E-3 visa lasts. Questions about a particular position or set of credentials may be directed to the firm through its contact page.