Immigration Solutions

E-3 Visas and the Specialty Occupation Requirement

With the E-3 visa category, employers from the U.S. can hire certain Australian professionals as “specialty workers” and employ them in the country on temporary terms.

The E-3 category status is only valid for up to two years upon release, but there can be indefinite renewals, every two years.

Australian natives that meet the criteria of the E-3 category, particularly those who have no issues with dual intent, will find this option preferable to the H-1b status.

Prospective E-3 employers are not required to prove that they are unable to access suitable candidates or substantially demonstrate their need. Therefore, simplified processing (with USCIS or at a U.S. Consulate) can help in deploying Australian employees rapidly.

The E-3 process can bypass the USCIS-related petition and be entirely completed at a U.S. Consulate abroad, resembling more to the Treaty Investor/Trader visa than the H-1b.

In cases like these, first the employer contacts the Department of Labor to clear a Labor Condition Application for the potential employee, and then the latter completes an online form for a DS-160 Nonimmigrant Visa and goes through an interview for the E-3 visa at a U.S. consulate in his or her country.

Although the Labor Condition Application is burdened by regulatory issues, all told, employers have a valuable and efficient mechanism of boosting their competitiveness with the E-3 visa, via the employment of Australian professionals.

Prominent, qualified employees from Australia have found an attractive alternative in the E-3 process to clear employment status in the United States, along with their immediate family members.

In order to qualify for the E-3 visa, the position must require:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The position must also meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.*

For you to qualify to perform services in a specialty occupation you must meet one of the following criteria:

  • Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
  • Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment

Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of  a U.S. bachelor’s  or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

“Specialty Occupation”

The E-3 visa keeps the same “specialty occupation” with the H-1b visa, stating that the candidate employee must be engaged in an occupation with the following requirements:

(1) the use of highly specialized knowledge; and

(2) the acknowledgment of this specialized knowledge with a Bachelor’s degree at minimum, or equivalent experience in the field.

To be acknowledged as a specialty occupation, a position has to meet the following requirements per the USCIS rules:

  • A bachelor’s degree is the minimum educational requirement for the post;
  • the employer’s degree requirement is comparable with what other organizations use for similar positions;
  • a degree or an equivalent title is typically required for the position by the employer, or
  • the specific duties require knowledge with such a high degree of specialization that an individual must usually hold at least a Bachelor’s degree to be able to perform them.

The broadness of the definition is such that includes occupations in the subjects of engineering, architecture, mathematics, medicine and health, social sciences, law, business specialties, education, accounting, journalism, veterinary science, and many more.

Candidate Employee Qualifications for Specialty Occupation

To meet the qualification requirements for a certain specialty occupation according to the rules in effect, a prospective employee must be the holder of the relevant license as needed by the state of employment, have acquired the required degree for the occupation, or have equivalent experience in the said profession and a recognition for the acquired expertise through a number of position with progressive responsibility, in relation to the specialty.

The State Department or USCIS may acknowledge that an individual may be qualified as having the equivalent of an advanced degree through the following means:

  • Evaluation by an academic official with the qualification to issue college-level credit based on experience;
  • Evidence of the individual succeeding in a college-level equivalency examination such as the Program on Noncollegiate Sponsored Instruction (PONSI), or the College Level Examination Program (CLEP)’
  • Acknowledgment by a credential evaluation service that the education completed abroad is equivalent to US academic standards for the required degree;
  • The individual is certified by particular nationally-recognized professional organizations; or
  • The USCIS’ ruling that the employee has accumulated enough education, training and work experience to be considered equivalent to a degree.

Regarding the last point, the State Department and USCIS consider three years of training and expertise to be equivalent to one year of college-level education toward the employer’s lacking bachelor’s degree.

According to USCIS, five years of post bachelor’s experience are equivalent to a Master’s degree.

Many employees have found this alternative to a particular academic degree very useful.