Update 1: I’ve recently written an updated post covering how to get your visa in Canada, with some fresh details around the DS-160 and appointment process.
About two months ago I moved to Silicon Valley from my home town of Wollongong in Australia. While the process of moving was fraught with a lot of personal logistical issues, the act of getting to the US was pretty easy – I was able to just get on a plane and fly to San Francisco and get through customs without a visa.
This is because, like many countries, Australia is on the 90 day Visa Waiver program, which allows you to spend up to 90 days in the US for a range of purposes, including business (attending meetings, conferences, etc) and pleasure (tourism, etc) without any paperwork or hassle (except for having a valid ESTA – but the form is all online and it is super easy to complete).
However, this situation has a bunch of limitations.
- You can’t get a social security number. This is a big deal – a “social” is how pretty much everyone in the US identifies you, and is central to how credit checks are run. If you want a credit card, you need a social. If you want to process credit card payments online – even though it is through your company entity – you need a social. Thinking of signing a lease for somewhere to live? It is possible, but they’ll want a social too to run a credit check. The list goes on and on and on.
- You’re limited to 90 days at a time, and things can get tricky. So, you’re going to be spending at least $10K per year in airfares leaving every 90 days. You don’t want to go right to the edge of the 90 day limit since over-staying can result in a later visa request getting refused (even if over-staying was the fault of the weather and cancelled flights). You also need to be gone for a meaningful period to reset the 90 day clock – 24 hours in Vancouver or Mexico doesn’t count if you’re an Australian from what I’ve been told. And, if you come back in for another 90 days a fortnight after leaving last, and this is the 5th time you’ve done it, there’s every chance the guys at the border will think you’re up to something suss and deny you entry, sending you back on the next flight. Aside from the uncertainty around this and grief if it happens, you also have the problem that being denied entry into the US puts you in a difficult place if you want a visa – red flags go up.
So, I needed to get a Visa, and if you’re doing this, you will to.
The good news is, it was actually really easy. You don’t need to pay a lawyer $2000 to what amounts to filling in a few online forms. You do, however, have to navigate some arcane, acronym laden systems that took me a bit of trial and error to get through.
Hopefully this how-to guide will help you with your application.
The E-3 Visa is a 2 year visa that is available to Australians who are offered employment in the United States by a US company. The short version is this:
- Make sure you’ve got a Bachelors degree or better (Graduate Diploma, Masters, Doctorate, etc).
- Find a company willing to hire you for a degree-qualified role, or set up your own company in the US.
Note about Degree Qualified Roles: we’ve had questions come up from time to time with people wanting to get a role that doesn’t normally require a degree (eg, a chef, etc). From a great post on ILW, Gary Endelman explains “They have to be H-1B eligible in the sense of having a relevant college or university degree to perform professional services in a specialty occupation involving the theoretical and practical application of a body of highly specialized knowledge.” The LCA process will actually allow you to select any role category you want, and some have much lower prevailing wages, but it is the judgement of the consular officer when reviewing your petition that determines if you’re in a specialty occupation and if you have a relevant degree.
Note about your own Company: setting up a company is legit if you’re getting offices, hiring people and you can show how the company is going to be able to fund this and your salary for the next two years. Setting up a sham front company to hire yourself out as a contractor isn’t recommended; I know people who’ve been rejected because the consular staff didn’t think the sponsoring company was legit enough. Expect to show up with your balance sheet, P&L, and demonstrate investment, clients or anything else you need to show the new business will be a going concern – remember, if you get rejected, you’ve now been classed as someone the US has denied a visa to – a black mark that is very hard to work around in the future.
- If you set up your own company, get your FEIN online (also known as an EIN or a TIN).
- The company will need to apply for an Labor Condition Application (LCA) for Nonimmigrant Workers (9035 form, online)
- Book an appointment with the US Consulate in Sydney, Melbourne or Perth (there’s a charge associated with this). Leave yourself at least 2 weeks from when you submit your LCA application, since you’ll need this to be processed & certified to take to the appointment. Update: you can now get your first E3 visa in Toronto, Vancouver and probably other US Department of States around the world; when I first wrote this the E3 was so new these other consulates hadn’t really heard of it, and saying no was easier than learning about it to say yes (even though the only rule is that you have to apply outside of the US).
- Actually complete your DS-160 online (it takes about an hour). Note you’ll need to have a digital photo of yourself where the lighting is good, the background is a white/bone wall, and you’re not smiling or having too much fun.
- Pay the fee for the visa application of
US$390US$205/A$225 as part of your interview process.
- Go to your interview, take your passport, your letter of offer from the company to yourself (I know, it sounds silly, but this is a big deal) and the other paperwork they ask you to have, and hopefully they’ll approve you.
- Your passport should be back to you within a week.
- You’re now good to live and work in the US for 2 years and travel in and out of the country without restriction. The border guards will sometimes still be c*nts – at LAX almost every time, at SFO occasionally, but that’s just them making up for an adolescence of being bullied who now have a gun and some power.
1. Finding a company or setting up your own
The E-3 visa requires you to be employed/sponsored by a company. It basically ties your right to live and work in the US to the company that makes you the offer and completes what is known as the LCA process. If you find someone who will sponsor you, they’ll need to complete Step 3 below, and once they’ve got you an LCA, you can then head to Step 4.
However, if you’re an entrepreneur doing a startup, you’ll instead want to get your own US entity. Keep reading.
The decision about which entity is right for you is a bigger issue than I can cover in this post. Generally speaking though, you’ve got two options:
- Register an LLC, probably in Delaware. This is like the Australian equivalent of a trust – all profits made by this entity “pass through” to the “shareholders” or members of the LLC, and are paid at their own tax rate. It is a “lightweight” company, and can be flipped up to a C-Corp later. This will set you back a few hundred bucks, and you can easily do it yourself.
- Register a C-Corp, probably in Delaware. This is the Australian equivalent of a Pty Ltd company, which can have shareholders, the ability to retain (and thus pay company income tax on) profits and has higher costs of setup, more paperwork (need for office-holders, etc) and other hassles. However, if you’re going to the US to raise capital (seek investment), this is the vehicle you’re going to want).
You can register for these entities online – there are lots of options you’ll get when you do a Google Search for “Delaware LLC registration” or “Delaware C-Corp registration”.
The registration process will take up to a week to happen. You won’t need a US address to do it, and you can change the papers after you set up an office and you’ve moved to the US, so don’t worry too much.
A note about relocating/flipping up
If you already have a business in Australia, then things are more complicated than just registering a new entity in Delaware via an online broker. Moving your business to the US is known as “flipping up”, and there are a lot of reasons why you would want to do it.
For one, few US investors will be prepared to invest in your Australia Pty Ltd company. You can make the LLC a subsidiary of your Australian company easily enough – and this is the best approach for tax reasons too thanks to US tax treaties – but investors will want to make sure their investment is in the parent company or eventual owner of the intellectual property. Even if you manage to grow the business without needing external investment, you might find that potential acquirers will have difficulties working between US and Australian law in an acquisition.
The other big reason why flipping up is a good idea is that capital gains tax rates are also lower in the US (so you’ll pay less tax if you are successful and sell the company, either to an acquirer or to the public through an IPO).
If you decide to flip up, if you’re not careful, the act of moving the company to the US or flipping up will likely trigger a “Capital Gains Tax Event”, where the Australian Taxation Office see you as selling your Australian company to a new, US company, and demand you pay tax to the ATO (which can be as high as 50%) even though the movement was all just on paper (and you don’t have a fat bank balance).
Get good advice on this – unless you don’t have anything in the form of a company in Australia already, spend the money – $10,000+ depending on how complex your
mess situation is here in Australia – and do it right.
2. Registering for your Federal Employer Identification Number (FEIN)
Once you have your entity – either an LLC or a C-Corp – registered you’ll want to apply for a Federal Employee Identification Number, often called simply an EIN. This is basically the same sort of thing as a Tax File Number but for a company, and we can think of it as being an equivalent government identifier as an ABN (although you never need to put it on invoices!)
If you flipped up your company, your lawyers will likely have applied for one of these for you – ask them for it.
If you created your own C-Corp and you’re just a stock holder, you can apply for your EIN online at http://www.irs.gov/businesses/small/article/0,,id=102767,00.html
If you registered an LLC which is “owned” or a subsidiary of your Australian company, or held in your own name, you’ll need to register for the EIN by calling the IRS. The phone number is +1 267-941-1099.
This process is exceptionally simple – the government *want* you on their database so they can track you and the taxes that you and your employees will owe them.
Once you’ve got your EIN, you’re ready to ask for permission to hire yourself from the US Department of Labor, step 3 below.
3. Submitting your ETA Form 9035E for Labor Condition Application (LCA)
The next part of the process is the most time consuming – your employing company needs to ask the US Department of Labor for permission to employ you.
In this sense, the US is no different to many other advanced economies – they don’t want employers bringing in cheaper international workers which put downward pressure on wages for their citizens and they don’t want employers take advantage of employees by paying them low wages. Whether this form of protection is inherently fair or is actually a manifestation of racism and xenophobia, it is a fact of life, so we’ve all got to live with it.
The process of asking permission to hire a foreign worker is actually one of the less shit online processes followed by the US Government. The system is relatively straight forward, the form is smart, and while the instructions and acronyms are confusing, the instructions below should help you through it. Remember, this is the bit that you normally pay a lawyer $2000 to do for you – if these instructions help and save you some coin, then feel free to buy me beers when you see me or offer to make a donation to a charity.
Before you create your account
The first step is to create an account on the Department of Labor’s iCert system. This is free and relatively easy, but you’re going to need to get some bits ready ahead of time.
Remember, at this point, you’re applying as a business which is going to hire you – this is where physical presence starts to matter. This means the business is going to need to have an address and a phone number.
You can get an address with Earth Class Mail, or use the address of your Attorneys as an interim measure. If you have friends there who don’t mind you putting down their address, then that can work too. The LCA process is very specifically tied to the location you’re going to be working from – since the rate for a programmer is much higher in San Francisco than North Dakota – so put some thought into this.
There are lots of ways to get a phone number. If you’re already in the US and you’ve got a pre-paid number, do yourself a favour and get Google Voice set up ASAP, and use that number (since the prepaid ones go back into the mix if you don’t keep renewing them, and US portability sucks compared to here in Australia). If you’re not in the US, get yourself a Skype In number and get it for the city and area code where you say your office is going to be. That means, for San Francisco, make sure the number starts with 415. Alternatively, you can go to GrassHopper and get an 800 or an 877 number. As I said, there are lots of options here – just get it set up before you try and do this bit.
Creating your Account
Once you have an address and a phone number, head over to http://icert.doleta.gov/ and click on the “Create Your Portal Account Today” link, then after accepting the terms click on the “Create Employer Account”.
Once there, you’ve got a 3 page form to work through. Most of it is self explanatory, but some is a bit tricky.
- For the E-3 visa, you’ll want to tick the LCA box.
- The FEIN is the number you got in step 2 above.
- The NAICS code (stands for North American Industry Classification System) is like the Aussie ANZIC code. It is a standardised category of business types. You can search for them from the iCert form, or from the US Census office, but the easiest way to find them is to drill down into them so you don’t have outliers which match a keyword confusing you. You can drill down into them using this page, and then on the iCert page just search for the specific code.
- DBA means “doing business as”. It is equivalent as “trading as” here in Australia.
Once you’ve registered, you’ll get an email from email@example.com with your temporary password in it. Make sure you check your spam for this email, and whitelist that address (everything comes from there from here on in, including certification and denial notifications.
Applying for the E-3 LCA
The LCA application itself is a bunch more work, but thankfully it is a really good online form. To access it, simply log in, Click on “LCA” on the top, and then down the bottom click on “Begin New ETA Form 9035”.
Page 1 – Preconditions
This page is about undertakings – they basically want you to warrant that you’re going to make the LCA available to the staff member you hire, that you’re going to tell the truth, and explain how you’ll provide it to the person you hire.
Since you’re hiring yourself, it is pretty much a non issue 😉
Answer Yes to A, Yes to B and select the first option for C
Page 2 – The Visa type and job classification
The visa type is easy -E-3.
The position is harder. Basically, you need to find the best approximation for your position, and enter this. The effect of the value you choose is significant – it will determine the minimum salary you need to pay yourself to satisfy the conditions of the visa.
Step 1 – Find Your Position
Finding your position can be a bit tricky, particularly if you’re a founder – you do everything in your company, right?! You can search the database at http://www.onetcodeconnector.org but for what it is worth, I did a bit of searching to find something legitimate/accurate and not too highly priced (as per the next step). I found that “General and Operations Managers”, which has a SOC code of 11-1021 was pretty good, as it was both accurate and not too expensive (CEO on the other hand is expensive. You could also go for 15-1131 which is computer programmer, which has a lower minimum ($63K vs $73K). I’ve also heard of people putting their title as “Administrative Officer, CEO”, which allows a lower prevailing wage ($36K).
Step 2 – Work out Prevailing Wage
The second step is where you determine the prevailing (read: minimum for a foreigner) wage, which you can work out by going to http://www.flcdatacenter.com/. The process is pretty easy, and geography plays a big part. Do not lie about your geography though – the E-3 visa is only valid for you working for the company that gets the LCA for you in the place where they specify.
Page 3 – Employer information
This is easy – it just gets copied from the info you already entered when you registered. Win.
Page 4 – Attorney information
If you’re doing this yourself, you just need to say you don’t have an attorney. Easy. Win.
Page 5 – Pay information
This is where you tell the Department of Labor what you’re going to pay yourself. Remember, this is important, and it needs to be more that the minimums set out on the http://www.flcdatacenter.com/ website for the SOC code you’ve selected.
In section F, rate of pay, enter your annual salary. Leave the “to” empty, and select annually.
In section G, they’re looking for you to tell them why this is a fair rate (ie, is greater than the minimum). There are other places to get the minimum than the FLC Data Center website, however, it is normally only for more unionised types of blue-collar roles. Since this probably isn’t you, just stick with the OES wage. Stick to the Level 1 pay scale for the role you’re doing, and put in the value from the FLC Data Center search and tick the “OES” box. Also make sure you reference the FLC Data Center website as the source for the OES data.
Page 6 and 7 – Declarations
You don’t need to fill in the bit about being H1B dependent since this is an E-3.
The rest of the form is just standard commitment stuff. Once you’re done, you can submit it.
Common speed bumps
There are a few speed bumps that can get you. Here a couple.
- They decline your application because the Employer doesn’t have a valid 9-digit FEIN.
This is because the databases that sync between the IRS applications for an EIN and the database the Department of Labor use have lag/delays in them. If this happens, you can just reply with a scanned or PDF version of the EIN confirmation from the IRS.
- You enter the wrong prevailing wage info.
This is where I got stuck initially. The FLC Data Center is your friend – use it. I initially didn’t know about that site, and tried going through government agencies to find “award” type information, but it was only applicable for blue collar roles so I thought it didn’t apply to me and I could use a job search for “office manager” on Monster.com to find my prevailing wage. As it turns out, that isn’t good enough 😉
When I submitted my application, it took them about 3 business days to reject it if there was something wrong with it. Of course, I was learning as I went so I had two rejected applications before I got one accepted, so you’ll want to leave yourself some time here.
I was lucky and got my approval through in 4 business days, but they say that you should expect 7 to 10 business days. Keep this in mind when you book your appointment with the US consulate in Step 4 below.
4. Booking a Visa Appointment
Once you’ve submitted your LCA application – and ideally, you should wait until you’ve had your LCA granted – you need to make an appointment to the US consulate. This process is surprisingly straight forward, even if the wording is a bit weird.
- You pay for a PIN, which is the right to book an appointment, it is only $14, and they don’t accept American Express 😉 (Visa and Mastercard only)
- The system will show you available booking slots. My advice – get in as early in the day as you can, as the place is a bit like a doctor’s surgery – the later you book, the longer the backlog will be if they’re running behind time. When you book an appointment, you can move it a maximum number of times.
- You can only move the appointment more than 2 business days before the appointment date. So, if the appointment is on Monday, you only have until midnight on Thursday night of the week before to move it. This is in the time zone of the appointment, so if you come in on Thursday morning in the US and realize your LCA still hasn’t come through yet, bad luck – you have to pay for a new PIN.
5. The DS-160 Application
The DS-160 Application is a form that forms the basis of your actual visa request – the LCA is just one of the supporting documents you need.
The application is actually the sharpest thing I’ve seen the US government do online. The form is smart and high quality. You can come back to it any time using the Application ID in the top right and the security question you enter just after you start.
The application is started from https://ceac.state.gov/genniv/.
A few notes:
- You’ll need to upload a digital photo. Their system for handling these uploads is very clever. It will tell you if your head is too small or too big in shot. It will tell you if the background isn’t plain and boring. It will tell you if the light isn’t good enough. It will tell you if it can’t see your eyes (so make sure the flash is on). You can, however, take the shot using a smart phone camera, since they don’t need it to be super huge in pixels or filesize. More info at http://travel.state.gov/visa/visaphotoreq/digitalimagereq/digitalimagereq_5327.html.
- You’ll want to have your passport on you. Unless you know not only the number, but also the issue date and expiry date. Since Australian passports don’t specify the location of issue, I just said “Canberra” and all was good.
- You’ll need to know the data and place of birth of both of your parents. Since you’re probably doing this in a hurry, ask them first.
- They’ll want you to list all the countries you’ve visited in the last 5 years. I don’t think this is a big deal, but if you have been to somewhere America doesn’t like – like Iran or North Korea or Syria – this might be a problem. I don’t know how they can check this though, other than looking at the stamps in your passport.
- There are lots of crazy questions about things like moving to the US to be a prostitute, or having an army of child soldiers. As far as I can tell, the reason they do this isn’t because you’ll admit to those things, but because it makes it very easy for them to cancel your visa if they have reason to believe you lied on your application. Much easier than having to prosecute you in an American court for having an army of child soldiers in your past in another jurisdiction.
Once you’ve submitted the DS-160, you’ll get a confirmation page with your photo, a summary of key information and a barcode. Print this and take it with you on the appointment day.
6. Visa Appointment Day
The visa appointment day is pretty interesting. A few notes and tips.
- Make sure you bring all the documents and evidence they want. I won’t list it here because the appointment confirmation in Step 4 will tell you, and I don’ t want to get you in trouble if you rely on this blog post and they change something. I was super prepared, and took the following:
- My passport. Very important.
- The full print out of the LCA. They only took a couple of pages from it, and gave me back the rest of it. Suggest you take it all too.
- The confirmation page for the DS-160. This was critical – they needed it, and it became the anchor for all their other paperwork.
- My actual degree. They didn’t need it.
- My transcript. They didn’t need it.
- A print out of the P&L of my Australian company to prove I could afford to live in the US. They didn’t need it, but if they suspect your newly formed US entity is a sham/shell being able to prove you have clients, revenues, etc is going to be a very big deal. I got questions about this and answered them confidently, and know companies I’ve been an investor in have had questions (we’ve raised venture capital and we’re moving the business to the US is legit), but “I set up the company so I could get a visa and then be a contract labourer with no job security or likeihood I can pay myself to be honest” is what you don’t want to be flagged as.
The rest of this is specific for my experience in Sydney. Hopefully knowing what you’re in for will make it a bit easier and you’ll be a bit more confident. Remember, this is an interview – they’re deciding at this point if you can get your visa.
- For Sydney, the reception area is on Level 10 of the MLC building, which is just above the food court and near a bunch of doctor’s surgeries. This reception area is just used for screening you, and your bags stay down in this area. They have a dedicated lift that goes to the super-secure consulate on Level 59 after you clear screening, and you’ll be escorted up there. It is all pretty serious really.
- The screening process is hard core, with you going through a metal detector and your bag going through a screening process too. Bring the barest of stuff in any bag. You not only have to take out your laptop, but also any “wires” in your bag. If you bring a laptop bag with lots of cables like I did, be prepared to have them rib you – where’s the kitchen sink? – and also realize you’re slowing down everyone else in the line.
- You can’t take your mobile phone upstairs, so when they say to turn it off, turn if off. Same with laptops – sleep isn’t good enough, but hibernate would be (they just want to make sure they’re not seeing flashing lights).
- Take a book to read. These are still allowed when you go upstairs, and since you’ll be waiting for around an hour all told, take a book.
- After you pass screening, there will be some staff who check that you’ve got the key things you need, outlined above. They will combine the key things – your passport, your DS-160 confirmation, your express post envelope and your receipt from Australia Post and your LCA – and put a rubber band around it. If there’s a problem here, they’ll send you on your way.
- When this is done, you’ll wait for a trip up to Level 59 in the lift.
- When you get to Level 59, a security person behind very bullet proof glass will check you first and allow you through the heaviest bullet proof glass door I’ve every seen to your right hand side. Have a look at the security console while the guard is checking your paperwork wad – it looks like something from a James Bond flick.
- After you go through the door on Level 59, get a ticket from the machine just to your right after pressing “non immigrant visa”. Then line up and you’ll be called by this number to windows 2, 3 or 4.
- They’ll check your rubber band collection of papers, and hold onto them, leaving you your number. Grab a seat to the room on the right of the big heavy door you walked in through and take a seat in the waiting room. This is where the book comes in handy – you’ll probably be waiting half an hour or so.
- Wait for your number to come up. You’ll be called to windows 6 or 7, where someone will talk to you on the other side of bullet proof glass through a microphone and speaker system. Everyone in the waiting room will hear your conversation. If you ticked the box in the DS-160 saying you have a sexually transmitted disease, everyone will now know. If you have a criminal record, expect to be asked about it in detail, and expect everyone waiting to hear. Suck it up – you don’t know any of these people (probably), and if your time waiting was like mine, you’ll hear plenty of stories of woe from weirdos and freaks that will make you seem much more normal. I don’t know if my favourite was the 65 year old cooking teacher/missionary who ticked yes to being arrested even though she was just cautioned 25 years ago when her friend shoplifted a bottle of lemonade, or the guy who was an unemployed musician having a lot of difficulty answering the question about what he does for work.
- I was asked by everyone if it was my first E-3 visa. I don’t know if things were smoother or more difficult because of it, but everyone official wanted to know.
Expect to get questions about your company, why you’re moving there, what your company does, how many staff you have here in Australia. If you’re well prepared, confident and make a compelling reason why you’re going to be a good visitor – and remember, the E-3 is a visitor or non-immigrant visa – then you should get through smoothly. If you’re lucky, the interview will go for 5 minutes maximum, and you’ll be told then your visa is approved.
When you leave, head down to Level 10, get your stuff from the guards, and be on your way.
They’ll then stick the visa into your passport, and send it back to you. My appointment was on a Monday morning, and I got my passport back on a Wednesday morning (in Wollongong), but your mileage might vary.
Fallacies (in my case at least)
As with all things that relate to governments, laws and other black-boxes which you’re desperate to have a good outcome from, there are a lot of things I heard from people that didn’t bear out in my case. Just because they didn’t happen to be issues for me doesn’t mean they’re not ever true, but they just didn’t happen to be issues in my case.
- “You need to have a board of directors in your company who can ‘fire you’ otherwise they won’t see you as being in an employment relationship and won’t grant you an LCA”. This wasn’t the case for me – hell, the people at the LCA assessment centre didn’t even have up to date records on the EIN. Delaware has a very strong corporate veil, and I don’t think you even have to disclose outside Delaware who your company directors are. Basically, this was a non issue – I submitted my LCA in my own name, saying I wanted to hire myself, for a C-Corp which had just been formed. And they gave it an approval in under 4 days.
- You have to go to Australia to get your first E-3 Visa. While this used to be the case, I’ve got friends who’ve gotten their first E-3 Visa in Toronto, for example. My understanding is that any consulate outside the US will do, BUT, this is still such an unknown visa class that you’ll probably be out of luck most places. I have a friend who WAS turned away from Mexico City, and others who’ve successfully gotten them in Canada – not sure how to check in advance, but just letting my East Coast friends know they can avoid LAX hell and get one from the friendly Canadians just north of the border.
- A three year degree in Australia doesn’t count as a Degree (since in the US a bachelors degree is 4 years). This sounds like bullshit immigration lawyer advice earned legitimately through getting people through the nightmare paperwork associated with H1B and Green Card applications. I’ve never heard of it applying AT ALL to the E-3 process; the paperwork in general is a LOT lower and the decision is made by an officer in the consular office while they’re talking to you for a period normally no more than 3 minutes.
I’ve had a bunch of people email me and ask how they can say thanks for the advice. If you’d like to say thanks and you don’t already have an account with Uber or Lyft, feel free to say thanks by using my invite code (below) and you’ll be helping me out with extra credit and getting some credit to start with yourself too:
- Uber: 9xybb
- Lyft: GEOFF304
Asking for Help
A few people have been contacting me directly asking for comment, advice, a call to discuss their specific circumstances, etc. I’d love to help, but I’m not going to, and even if I wasn’t working 100 hour weeks, I wouldn’t answer your personal, specific issues. This post exists solely as a journal of a personal experience. I’m not a lawyer, and I’m in no position to give specific advice. You are, however, most welcome to tap the accumulated personal experiences of the thousands of other folks who’ve gone through their own journey by entering a comment below with your questions, feedback or personal experience for others to benefit from. But please don’t waste your time and mine asking me directly for advice.
I’m a co-founder of a technology business that plans to move operations from Australia to the USA and set up a US company. I’m a US citizen, which I think will help somewhat.
We do have an Australian company set up, which we’ve been operating for the past 5 years (so likely need to go through the painful task of making the US company the parent).
As part of the move, we’d like to bring over key executives and managers of our team. Based on your post, it appears as though we could do the following:
– I could establish a US company in Delaware (either from Australia or the US) and move to the US
– Then, we could employee our other co-founder and our Australian managers as executives/managers in the US company under the E3 visa program
Would you say this still sounds correct? Or, should we be going down the L-IA Intracompany Transfer route?
Yep, that sounds right!
Hi guys, thanks for the blog and the informative posts.
I am looking at starting up a small company via the “Delaware” registration process to get an E3 visa. Is it possible to get a visa this way if you do not have any kind of degree?
I have years of experience in my field and have found a business opportunity that does not yet exist in the US but is doing very well in Australia with lots of email enquiries from the US after these products,
Yeah but nah 😦 It is a lot harder to do it without a degree, and self-sponsoring is already a tough ask. I wouldn’t try it.
My wife has a Masters Degree but will not get her Australian citizenship until later this year. Will have to try and get into the US through her at a later date.
I asked this before but got no responses. Anyone?
Does anyone know if the following situation is possible under E3?
Employer is an Australian IT company with locations in the US. But the role to be filled by an E3-Visa candidate is not living in the same location. The job involves working as part of management/strategy team (telecommuting) to expand company presence/clients in the US, attending conferences, events and client meets (involving travel – at least once/twice a month – to different locations in the US).
The main issue is, can the employee (E3 candidate) live in a different location than the employer/client locations? Assuming there will be some form of telecommuting, travel, etc. to satisfy the job requirements.
Also, even if say, the employee lives in the same city as one of the company locations in the US, the employee might not be working in that location and possibly might be working in different client cities over the span of the visa. I am assuming this is common, since many folks work for consulting companies?
Thanks in advance!
WOW, a lot of visa related news over the past few days. Thankfully no mention of any changes to the E3 visa in the draft executive order.
which can be found here
Click to access Protecting_American_Jobs_and_Workers_by_Strengthening_the_Integrity_of_Foreign_Worker_Visa_Programs.0.pdf
Also an overview here
Does anyone have any experience or information for a gaining a visa without a degree? I have a diploma from TAFE and a number of industry (Cisco) certifications (CCNA, CCNP, CCIE, CCNA Security)
Thank you for such useful info.
Am I write in reading that the EAD application is $400+ ?
EAD application is 375$.
Do you know anyone that has applied for the E-3D? My wife has just got a job, approved LCA and we’re just about to book appointments but trying to work out if I should book my appointment for the same time and if we will both be called to the counter to explain the situation.
I’d prefer not to have to wait until she gets her passport in the mail after approval and then go in, that seems inefficient…
Appreciate your thoughts
You don’t book an E-3D appointment, you need to be there at the same time as her. She is the primary E-3 applicant and your visa dependent on her visa.
Book the appointment together.
While filling out the DS160 form, after you fill the primary applicant’s form it will ask do you want to add other family members and then fill your DS160 and it will be linked together. Just select E3D visa type for you from the dropdown.
I hope this helps.
That’s great, thanks for the advice KK and Lee. Went through the process all good!
Just a follow up question on the E3D Visa. Has anyone got this Visa and applied to work in the US? What was that process like? The information online indicates that the holder can work in whatever field they like and that the process is fairly simple but it would be great to hear of someone’s experience.
The work authority is a relatively straight forward application but the approval is s takng in excess of 3-4months to process or indeed even longer.
Yes, the E3D holder can get an employment authorization which entitles them to work in any job. It takes between 3 & 6 months to get approved.
The filing fee for Form I-765 is $410.
When you are in the US apply for EAD card which takes 4-5 months to receive. Then only you can start working. Also for the second time you do not need to wait till you get the renewed card, you can keep working.
I had a E3 and my wife was on E3D. When we came to USA first time, we did not apply for EAD, she found a job and asked them to do a E3 for her. The benefit of having two seperate E3 visa is that if one of you loose your job you can take a E3D and stay in US. If the principal applicant looses their job then the E3D and EAD card is not valid. It is a safety measure to have your own E3 visa in my opinion. Just my 2 cents to it.
I hope this helps.
Hi there, does anyone have any experience getting an E3 for a newly established entity in the US (a subsidiary of an Australian company that has operated for about 8 years)? They are looking to bring me on as there first hire as operations manager, setting up their presence in the US and managing the workforce once they have hired more people. I am hearing horror stories from some advisers. Some are saying that I will have issues being the first employee on the ground for the company. But that sounds pretty unfair. Has anyone been through a similar process?
That’s exactly what I did when I wrote this post. The advisers are prob talking FUD which is why I wrote this post – too much grapevine bullshit wrapped in a desire to get a bunch of fees (and often screwing things up based on the real first hand stories people have shared with me). Make sure you go in with company financials to show the AU can fund your salary.
For those who have done E-3 visa extension of stay (using I-129):
Do you know if it is an option to use or have you used the ‘premium processing’ option (I-907)?
Hi all – quick question – has anyone got an E3-D visa in their passport? My spouse just received theirs and it just states E3 (no D) – I want to make sure that they got the correct one issued! Thanks
Yes it should mention E3D. Also at the bottom of the visa it will say the name of the main applicant.
On a E3 (main applicant) visa sticker it will mention the name of the company at the bottom of the visa.
I hope this helps.
I’d like to know if you think there’s any benefit to registering a C-Corp instead of an LLC as it pertains to obtaining an E3? Is the consulate likely to take a C-Corp more seriously and therefore more likely to grant me an E3 as a result?
I am applying for an E-3 with the same employer (continuing my job) and am wondering if I need to go up a level in the prevailing wage level simply because I have gained experience in number of years with the company. Does anyone have experience with this?
No, you shouldn’t. I’ve never seen them pay attention to the levels thing – it is a box checking exercise on the whole.
Thanks Geoff! Have you ever tried to renew your E-3 in Australia over the Christmas holidays? I plan to allow enough time to take into their closures for Christmas, Boxing Day and New Year’s Day but I wonder if they will actually be doing any work there between Boxing Day and New Year’s or if they will just technically be ‘open’ but not really working (ie. wonder if these days would count as business days when my visa is being processed)?
I haven’t and wouldn’t hazard a guess unfortunately.
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Hi Geoff, I just wanted to say THANK YOU for all the information you’ve posted…..Thanks to YOU and the guidance you provided, we’re off to San Fran in the new year! Delaware LLC done, visas done and your clear and concise advice has been invaluable! If you’ve got the time, drop in and say hi, sometime around April….we’ll be on Irvine the business is Wicked Dame Vintage Design Clothing…..If you have a chance, can you give me an idea about which healthcare provider you used? We’re looking at Blue Cross…..Again, thanks so much for your time and trouble in making entry so clear!
Good work mate! helping ozzies along the way.
I have question regarding my E3 visa, Its been 20months working in the US.
I live with my wife and son in NJ, back in Sydney I was self-employed.
After reading this wondering if I can do the same here.
Question is, can my wife start a company in the US and sponsor me as an employee.
Then again I will have to sponsor her as an E3 dependent, is that allowed or would it work.
The answer is kinda with respect to yourself, but realize the State Dept person who does the assessment will look closely at the company and its capacity to pay you. So, if you show up with a company that looks good online, has other people and a balance sheet that shows how it will pay you the prevailing wage, then you should be OK – I would not recommend showing up with a newly formed shell company to do personal consulting but no track record of clients and revenue. You might get though, you might not – and if you don’t then you’re kinda screwed.
Hi there Geoff – brilliant blog – so insightful and very detailed, yet easy to follow.
I’m in New York and want to work for NYU, but they require a sponsor so they can pay them to pay me, but I’m already on an E3 with a company who won’t act as a sponsor for another company, so I want to have another sponsor – MULTIPLE SPONSOR to act on my behalf for this contractor position. Is this possible, to have another E3 sponsor, if so do I need to leave the U.S again? Thanks.
This was a huge help. Thank you so much for creating this blog. I live in San Diego at the moment. I have been here since September 2016. I received my visa in Vancouver. I am going to be renewing soon. Is it better to renew in America or start the process all over again? The expiration for my Visa is August 25th 2018.
Hope to hear from you soon.
I can’t come up with any good reason why you should renew in the US. You can do it, but my understanding is once you start the on-shore process (which takes a LOT longer) you’re basically stranded and can’t re-enter the country (so if you need to dash home to a family event, funeral, or have to go overseas for work, you’re screwed).
Thank you for this awesome blog, I am currently in the process of doing my own application. I was hoping to see if you or any other people have some insight into what happens once I am approved and arrive in the U.S, there is not much information about and my sponsor has asked me to look up more information. Other than a Social Security number what more should I be aware of and do upon arrival and commencing work?
The SSN is something you’ll want and need to do when you get here. At work, there’s a thing called an I-9 which your employer needs you to fill in – it is the statement that you’re legally allowed to be working in the US.
Does the second person in the LLC/C need to be a US Citizen? i.e a software development contracting company (only small) for the E3 process, does the hirer/firer need to be a us citizen?
It has never been an issue in dealings I have; just needs to be someone who can fire you.
Hi Geoff, great post. Very informative. Do you know anything about obtaining a second form of income while on a E3 visa? We are currently in the US (my husband in E3 and I am E3-D and are thinking of starting an online business as a second form of income. Is this allowed?
Great post, thank you very much for sharing. I have just been offered a role and I am wondering if legally I fill out the LCA out myself or does it need to be done by the employer or by a legal professional?
Geoff, is the LCA number that form DS 160 asks for the same as the LCA Case number. This is the only number I can find on my certified LCA Application
It is one and the same.
Hi, great blog, thanks for all the info! Can you sign a 1099 with an employer while getting the E3? Can I be employed as an independent contractor under an E3? The LCA has been certified, interview booked and employer asking me to sign a 1099.
I wouldn’t – unless you’re on a visa already with working rights, it would be illegal to work in the US in any capacity – 1099 or W2 or cash in hand etc
Thanks Geoff, he wants me to work under the 1099 after the visa is approved, I was under the impression that’s not possible, it would have to be a W2.
Hi Geoff and all other readers,
Just reaching out, I had a search and couldn’t see any answers. Just wondering if you or anyone has had experience with a multi-employer E3 visa. I’ve read that Melbourne and Sydney know how to do it but just wondering if there’s somewhere closer. We’re currently on an E3 single employer but in the process of changing jobs and going to 2 jobs that are part time.
Any stories or help would be greatly appreciated
Geoff, I understand one of the stipulations for an E3 Visa is:
“The 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.”
My question is, what does ‘or it’s equivalent’ mean?
For example, I have 2 diplomas and have completed half of my degree. Would this count as it’s ‘equivalent’? Or is that something I can only determine through an interview at my local embassy?
I’ve emailed MelbourneVisas@state.gov, firstname.lastname@example.org and email@example.com and they haven’t been able to answer the question.
I can’t remember the specifics (perhaps someone here will) but basically there’s an X years if work experience = 1 year of a degree. I imagine diplomas have a similar contributing effect, but I’m not 100%.
It is a 4 year bachelor degree or 12 years of experience or a combination of the two. In my case I had a 3 year degree and 8 years of experience in the field that I was moving to the US for. I have a feeling though if you just had a 3 year bachelor degree they would still let you through, they have tons of E3 spots available each year and never get close to filling them.
Thank you both for helping clarify what ‘equivalent’ means.
Problem is do you think I should still apply even though I only have 2 diplomas, haven’t completed my degree yet (half way through) and 4 years experience in the field? Or it’s not worth it because I’ll very likely be rejected at the interview?
“As a guide, three years of professional experience may generally be used as a substitute for each year of university-level education. This means you would need to show 12 years’ experience in the field you are applying to work in.”
There’s professional services that do the equivalency assertion/assessment stuff – they’ll know for sure.
What professional services are these and how can I locate and search them?
What professional services are these and how can I locate and search them?
It is called an degree evaluation. You can google them. They see all your educational qualifications and work exp and they give a letter saying it is equivalent to a bachelor or masters degree for example. You can take that letter to visa interview if they ask for proof for bachelors degree. Their charges are normally 100-200$ to do the evaluation depending on the conpany.
I hope this helps.
Thank you so much KK! Finally have an option for my situation!
For any other Aussies reading I’ve found this service so far: https://www.evaluationworld.com/thank-you.html
Geoff, I’m on an E3 and wife E3D, due to change employer. Can I file the I-129 and have the new employer file just the LCA first then give me the LCA numbers etc? (id like to minimise the admin they have to do). In addition im in the US at present, how long will the change of employer process take and will it just novate old for new employer name and current E3 will run out its remaining time, then I have to re apply prior to expiry? I’m slightly confused that the paper visa in my passport will not have been re stamped and if i go to leave and re enter the US Ill encounter admission issues by the passport not tallying with the data held at USCIS. Any help would be appreciated, in summary change of employer in or out of country applications implications.
What I’ve always been told is if you change employer you have to get a brand new E3. I’ve also heard the I-129 takes months and months, which is why everyone I know leaves the country when they get a new job for a new E3. I’m not 100% on the E3D implications – my guess though is that they’re tied together so your wife may well be in for a visa run too – but I don’t know for sure.
You can do the paper based renewal but you cannot start work with new employer until the application is approved which takes months. Also E3D is tied to the E3 (main applicant). So to renew the EAD for E3D the E3 should have been approved otherwise EAD will expire and not be able to renew it and E3D person cannot continue work. E3D can continue work if you go out of country and get a new stamp and E3D applies for EAD renewal before current EAD expires as you would do the renewal normally before current visa expiry.
My advice from my personal experience is that go to a US embassy which is closet and renew it that way to avoid the hassles. Also if possible get a E3 for dependant if employer is ready to file a LCA. So dependant issues and EAD renewals can be avoided.
I hope this helps.
Awesome post Geoff! SO helpful.
I’m currently on an E3 and have found a new job here in the US. My new employer and I have decided to just get a new E3 rather than file a Form I-129 due to the long processing times.
This time I’m doing the whole process myself – I’m a bit worried about the “prevailing wage”. When you search for my job title (which is what has been advertised online), this very high salary comes up and the job description is more way advanced than my position.
I’m worried that I’m going to get caught out on a technicality because of my job title – has anyone had any experience with this?
Also, has anyone applied for their E-3 in Calgary? (Last time I went to Sydney and husband went to Belize with no problems so trying to avoid flying across the world)
The advertised salaries aren’t a consideration – it is the prevailing wage data in the govt database. Think of the prevailing wage stuff as the “minimums” – they’re making sure that folks aren’t being hired in under those pay rates, not that it is “market” so to speak.
Sorry Geoff – to clarify – the prevailing wage on o*net for my job title, is quite high. I’ll be working for a small company and the actual tasks of the job is more suited to a different occupation title on o*net that has a lower prevailing wage.
As long as the LCA title matches the prevailing wage, I think you’ll be fine – I always have been. Title inflation – and what you put on LinkedIn – isn’t necessarily the equivalent (to the market) position you’ve been hired for.
Okay quick question re E3R, my E3 expired start of 2018 I left the US now I’ve gotten a job back with same firm in US. Should I apply as an E3 renewal or fresh E3?
E3 renewal. First time it is e3 after that always e3r
Even the f there is a decent time lapse between applications?
I think so. I was on e3 then e3D and again went for e3, but it was still counted as e3r. This is my personal exp. other experts can comment.
Thank you for putting so much time and effort into this post.
I am hoping someone will be able to help with my situation to help ensure I take the right steps to ensure I get an e3. A business partner and I want to set up a Delaware LLC in the US.
Should we start the LLC and run it for a few months before applying for my E3 to show that it can operate and generate profits first? Will this impact on whether they believe I need to operate the business as this seems to be an issue for an E2?
Can my business partner complete the LCA?
Would I need to state in the E3 interview that I am a co owner if it is a Delaware LLC? Would this affect the application? I have been told that I should consider having a lower share of the company to have the E3 approved.
Thanks for reading.
In my experience, the consular officer needs to be convinced that the business can pay you the prevailing wage. I know someone who was rejected (setting up a very painful scenario) because when the office did a Google search for the employer (who was a super boutique consultancy in the bio tech services space) who didn’t have a professional website (cause everyone in their target market already knew them) so the officer decided they weren’t a very legit employer. I took financials to my first interview and they didn’t matter but I did get questions about how big the team was in the AU company (I was opening up a US office for Accelo) – again, vetting the company had the resources to pay me.
Being a co-owner/partner is a problem in that you need to be able to be fired. I’d set up a Board (and include as a “member”) a third person, so that your partner and this person could fire you if they wanted (since the Visa is for employment).
Thanks so much for your help and your time.
Will definitely run the company for a while first then.
If we set it up with 2 on the board (myself excluded) and have myself with a smaller share in the business, say 45% instead of 50%, do you think that would show a employees and employer relationship?