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.
Overview/TL;DR
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.
Address
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.
Phone
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 oflc.portal@dol.gov 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.
The screen above is from a completed form in PDF format, but the questions should still line up.
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 😉
Timing
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.
The Interview
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.
Saying Thanks
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.
geoffmcqueen.com 
I don’t know why you say early in your article that an E-3 visa doesn’t permit you to have a SSN.
The Social Security Administration (a leviathan bureaucracy) issues 3 types of Social Security card (http://www.ssa.gov/ssnumber/cards.htm):
1. regular SS card without annotations (US citizens and permanent residents);
2. cards annotated “VALID FOR WORK ONLY WITH DHS AUTHORIZATION” (temporary residents with permission to work); and
3. cards annotated NOT VALID FOR EMPLOYMENT (everyone else).
Everyone who gets a card (whether type 1, 2 or 3) gets a SSN.
People who have SSNs are able to get other documents, like driver’s licenses etc. and establish a documentary history in the USA. They can open bank accounts as well as build up a (good) credit history.
As at the present time (July 2014), Australian E-3 visa holders in the USA appear to be eligible for a SSN in category 2 (temporary residents with permission to work): 42 USC §405(c)(2)(B)(I) (http://www.law.cornell.edu/uscode/text/42/405#c_2).
Of course, merely having had a SSN allocated does not entitle a person in the 2nd or 3rd classes to remain in the USA indefinitely or access US welfare or health programs.
I think that, so far as most of us are concerned, the main utility in having a SSN is because employers, banks, DMVs and other organisations will expect us to. The occasions on which you’ll actually have to show your SS card (unless you choose to use it as an identification document) will be few and far between – switching jobs is the only common reason I can think of.
The only catch I can see in this analysis is a Catch 22: You need an approved offer of employment initially to get an E-3 visa, but a significant reason why you’d want a SSN is to aid in the search for a good job! (The only remedy I see to this situation is to apply Geoff’s technique and effectively employ oneself via a US entity, apply for a SSN as soon as you enter the USA, and then use the newly-acquired SSN in a search for other employment.)
I misread the first paragraphs of your article, and I apologise.
Hi Geoff, thanks for your very helpful page. Quick question: with regards to the LCA, upon certification, will my employer need to physically mail me the document, or can I bring a printout of an emailed copy to the consulate?
Hey SL,
We had an electronic copy and printed it out for my process. Make sure to double check all the places you boss has to sign the LCA. We got it back and submitted it at the consulate without signing everything and it delayed things by a week
Printout of emailed copy is fine
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Hi guys,
If you setup an LLC in Delaware, do you need to show proof of a physical business address there to immigration? I plan on basing myself in NY but wondering if Delaware is a bit of a red flag to immigration officials.
Thanks,
Ani
Your state of incorporation has nothing to do with your system of operation
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Hi Geoff,
I applied for the e3 visa and got denied because the role I was going over was not considered a specialised role. I’m thinking of applying for th J1 work and travel visa for 12 months because I qualify, would they give me a hard time?
Sorry to hear – very surprising. What role did you go for, and which consular office did you get rejected by? Finally, was the employer a startup (yours?) or a more established employer?
It was a ‘Junior Designer’ at the Sydney consular. It was with an employer but they did the LCA themselves and weren’t very experienced with the process. Can I just say I was given the wrong advice on which visa to get?
Hi Geoff,
I have a possible job opportunity that is a 9 month contract.
I am on an E3 visa in the US already.
I was just wondering if I could take this role or should I try to find a full-time non-contract role?
Thanks,
Marija
To all those who have or had an E3,
While, I do have my bachelors degree, I am unfortunately not qualified for too much. So, a lot of jobs that are accepting entry level or close to that, don’t require a degree and will not work for this visa. How have others got around this?
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Hi Geoff,
I went through the whole E3 process with a newly created LLC a few months ago, which was easy (definitely no lawyer required), so Im on an E3 visa in the US at the moment.
Now I have been offered an even better opportunity in the US with an international company and that company want to sponsor me for an E3 which they have never done before.
Few Questions –
1. Along with a new LCA that they need to submit, they also need to complete an I-129 right? In the I-129, it asks to check the following:
Basis for Classification (Check one):
a. New employment.
b. Continuation of previously approved employment without change with the same employer.
c. Change in previously approved employment.
d. New concurrent employment.
e. Change of employer.
f. Amended petition.
Which one of these do they check?
2. Can I keep my initial E3 as well as the new E3?
3. Has anyone had an experience completing this process and submitting the I-129?
I am planning on flying to Canada for the interview and just wondered if there would be anything further that I need to know / communicate to the employer.
Thanks!
Tash.
Hi Geoff,
First of all thanks a lot for writing such a wonderful post with all the details. It’s really amazing.
From your post the process looks relatively simple to set up your own LLC and sponsoring yourself for E3. Now sometimes when it’s really simple it’s hard to believe :).
For the LLC path you have suggested, do I need to have any trust or company in Australia? I am currently working as an employee for my entire life so far. So I hope I don’t need any prior establishment.
I will really appreciate your response.
There doesn’t need to be anything in Australia other than the resources to show that the US company is legit and can pay your salary. If you’re startup (as I was) the key was to show that I had the financial resources to make this happen (and not become a burden on the US taxpayer). So, if you’re setting up the LLC and you don’t have much personal savings (and remember your min wage times 1 year would be seen to be “lean”) and you don’t have an investor or someone in your corner to backstop you you may well struggle.
Thanks for the info Geoff!
I just came back from my interview yesterday and got rejected pending a new LCA submission. I’m still struggling to understand why, so if anyone has any advice, is love to hear it!
My job in the US is fundraising for a not-for-profit arts company. My employer selected the category of ‘fundraiser’ for LCA (via OES code data). I was told by the consulate that ‘fundraiser’ was too broad – this was the reason for the rejection.
Does anyone know what type of category is NOT too broad? ‘Fundraiser’ seemed to reflect the role and wage the best, so I’m at a loss to find a different category.
Thanks!!
Hi Geoff,
Quick question about Health Insurance. I’m heading to USA (SF) in 3 weeks on an E3 as well and was wondering if you have any tips on what health insurance provider to use or at least which one you use?
It is generally organized & selected by your employer
I know that. Just asking on situations similar to yours where you are expanding your business into the US.
I didn’t need to have revenues but when I told them I had 5 staff in AU they just assumed it was a going concern.
Hi Geoff! Thank you for the blog. Was very helpful!
I have been offered a role here in the US. In regards to the LCA, can I create an account then complete and submit that myself or does the hiring employer needs to do that?
Thanks,
Quan
Hi Geoff. Many thanks for sharing this process. If you apply to be your own sponsor for the E3 visa can you work as a freelancer and have another business or company pay your wages if you work on multiple jobs. For example if I carry out a job in graphic design for advertising campaigns and photographic shoots as a creative contributor. I guess I want to know if I can sponsor myself as a freelancer and have a variety of companies paying me on the jobs I complete and work for. I look forward to your response.
Andrew
Hi – first of all, WOW what a detailed blog – congratulations on an excellent post and thank you so much for sharing. I’m sure this post will help so many people – how great of you to share so much detail. My eyes lit up as I scanned the list and realised I have absolutely everything I need already in place to make an application – except the $$$ to pay myself for 1-2 years! Back to the ol’ drawing board 🙂 but thanks for helping me to dream the dream for a few pages!
Can anyone point me to the USCIS rules that say if you get a promotion or your role changes you need to get a new LCA and new E3 visa? Can’t find it anywhere…
Carl
Carl, I’m not personally aware of that rule. That’s not to say it doesn’t exist, but typically I dealt with it by just leaving my job title internally within the company systems the same, but the title I used externally was changed to reflect the increase in seniority of the role. Then you can address it at E-3 renewal time with an LCA to reflect new title and salary. I think UCSIS are more worried about a role lessening in scope, rather than increasing.
Hi Geoff,
Many thanks for all the information, and to all the commenters who are providing additional notes. It’s much appreciated.
My g/f has been on an E-3 Visa in the US for several years and recently decided she wanted to set off on her own for a bit. Since I’m from the US we thought it would be a great idea to form a company (LLC) and sponsor her for a new E-3 Visa. As I’ve been researching how to do this, I came across a few questions.
1. If you were forming a company as a foreigner, how can you get an FEIN without having a SSN or EIN already? It seems you have to have a US identified person in order to apply for the FEIN online or using the SS-4 print out form?
2. If we in fact setup an LLC and I pay her a salary, but she is also 50% owner, what about when we make profit distributions and receive K-1s? Is this allowed, how does the US view or even see this? Will they only be concerned with a W2 when she renews under the same company in 2 years?
3. When she goes for her interview, does the US Consultate ask to see proof of the companies financials? In a company I work at we have sponsored J1 and H1B visa’s for Italians and I have had to supply the company financials to the host organization, which eventually went to the state dept. My worry is that we are essentially a start up, and have a bit of income to show in a bank account, but certainly not an entire year’s salary worth for her.
4. Lastly, if she decides to create another US based company (LLC) with another friend, would this be ok? I feel like the answer is yes, because if she has a SSN and only receives K1’s from the LLC’s distributions, there shouldn’t be a problem?
Geoff and anyone’s insight is much appreciated!!!
Hi Geoff,
Many thanks for all the information, and to all the commenters who are providing additional notes. It’s much appreciated.
My g/f has been on an E-3 Visa in the US for several years and recently decided she wanted to set off on her own for a bit. Since I’m from the US we thought it would be a great idea to form a company (LLC) and sponsor her for a new E-3 Visa. As I’ve been researching how to do this, I came across a few questions.
1. If you were forming a company as a foreigner, how can you get an FEIN without having a SSN or EIN already? It seems you have to have a US identified person in order to apply for the FEIN online or using the SS-4 print out form?
2. If we in fact setup an LLC and I pay her a salary, but she is also 50% owner, what about when we make profit distributions and receive K-1s? Is this allowed, how does the US view or even see this? Will they only be concerned with a W2 when she renews under the same company in 2 years?
3. When she goes for her interview, does the US Consultate ask to see proof of the companies financials? In a company I work at we have sponsored J1 and H1B visa’s for Italians and I have had to supply the company financials to the host organization, which eventually went to the state dept. My worry is that we are essentially a start up, and have a bit of income to show in a bank account, but certainly not an entire year’s salary worth for her.
4. Lastly, if she decides to create another US based company (LLC) with another friend, would this be ok? I feel like the answer is yes, because if she has a SSN and only receives K1’s from the LLC’s distributions, there shouldn’t be a problem?
Geoff and anyone’s insight is much appreciated!!!
Hi Geoff,
I was hoping you could help me with the following. I’m filling in the LCA myself and I have previously held an E3 visa. It is running out and instead of renewing it I want to apply for a whole new one, I’m also traveling to Australia to see family and it made sense to do it this way. There are a two questions on the LCA form I’m stuck on:
1. Question B-5: For the employment start date, should this be 11/9 (since my current visa ends 11/8) – or actual start date with the employer (which was back in 2012 under a completely different visa [J1])?
2. Question B-7: Is “B” the appropriate category: “For continuation of employment without change with the same employer”
Thanks!!
Geoff,
After falling in love with an Australian man, we are struggling to navigate the E-3 process. Everything I have found on the internet is a bunch of nonsense, and I’m getting different info from different websites, while concurrently getting the run around from different state offices…
“No, I don’t know the answer to your question. You’ll have to call the Bureau of Bullshit and ask them”…
So I thought I’d reach out to you because this is literally the most helpful information I have found on this process thus far.
You noted that you had friends who were able to do this in Toronto, and that was a major concern of ours, whether or not he would be able to do this from a different place or not. He is currently in Nicaragua and planning to re-enter the states on another temp tourist visa through Mexico.
I guess my questions are (which I’m not sure if you can answer but if so please help!):
Is it possible to set up an appointment with a US consulate in Mexico for the E-3 status, to avoid having to reapply for a tourist visa?
and
If he is in the US on a tourist 90 visa, can he leave to Toronto or another port, or does he have to go back to Australia for granted status, or does he have to file a different way with the I-129 form because he is in the US?
Even if you could point me in the direction of some helpful info that would be so great!
Godspeed,
Victoria
Does he have a job and LCA in hand?
Has anyone gotten sponsored via E-3 visa by his own newly created LLC? I mean an LLC that has no clients (yet).
I’ve just moved to San Francisco and started to look for a job but ideally I’d setup an LLC, sponsor myself and do contracting while working on other ideas. So the above question is quite crucial and I went through every post and didn’t quite find an answer to it.
I know the startmate companies have done it with a c-corp
Thanks for that Geoff, that’s very encouraging. If you have a minute could you elaborate on that? I would really appreciate it. For example, what do you see as the highest risks of sponsoring yourself on a newly created company with no balance sheet and what would you do to limit them?
Hey Geoff,
Should have updated months ago but:
1) Went through this process, backed by a small US tech startup
2) My role (front-end GIS developer) was not related to my university degree (BA-International Relations)
3) The order in which I had to do some of the above tasks was a little different. From memory, I needed to have more stuff sorted before I could make an appointment with the consulate. It didn’t really increase the amount of time for my process however, since the wait-list for appointments was not very long.
Cheers for the information about this. I’m now contributing to the success of this startup in my new role and enjoying life in the Bay Area.
This is an excellent blog. I have had 4 E-3 visas issued in the past; two were transfers and one was a renewal. What you have written is true to the core though in my case I was working via an umbrella company.
I moved to Europe and now plan to come back to US for new assignments.
I wonder if your company can sponsor my E-3 and get a percentage cut as PGC/CXC(Olden days) do or should I setup a start-up myself as you have described above?
You can contact me at my email.
Sorry can’t get into that sort of thing
Totally understand your concerns mate!
I would like to get your feedback on viability of the other option. That is to setup my own company and sponsor myself an E-3 by following the steps you have described above.
Could you please send contacts of the lawyer who did paper work for you? He could be an immense help.
Hey Geoff,
So i’m planing on starting my own Personal training buisness in America. My main question is, it says bachelors degree or equivalent degree of study in that field. Since im a qualified personal trainer and have all my certification/qualifications to do so will that be accepted?
hope to hear back soon!
thanks!!!
Do you have a degree Benny?
I have an Associate of Liberal Arts in Science which i did over there while in college (went to a junior college to play basketball), i then came back and did a personal trainer course at the Australian Institute of Fitness and got Certificates 3 and 4 in Fitness aswell was a small business certification and a vocational one.
The Certs don’t count & I don’t know what an associate is but the E3 needs a bachelors degree or more I believe – the “relevant field” is a bit more tenuous (how many people do we know who did law degrees but now do something different?) but I think you might struggle on account of the business being brand new, it being a role that doesn’t generally require a bachelors degree & if you don’t have a bachelors degree. The painful truth about the E3 is that it was created to enable the promise of mutual recognition of professional qualifications as part of the FTA – so “professional service” roles like architecture, accounting etc are the bullseye, and then things get more tenuous the further outside that you move. The bachelors degree criteria is how they “ring fence” it to only be for “professional” roles to my knowledge.
And your right, it is a bit of a grey area. And i’ve done a bit of research myself, i mean it clearly says “bachelor degree OR equivalent in specialty field”. So what i did was search for my OES Code which i found and it has job description and everything you need to know, Even education. http://www.onetonline.org/link/summary/39-9031.00
thats the link i found it on and if you scroll down to “Job Zone” under “education” it says “Most occupations in this zone require training in vocational schools, related on-the-job experience, or an associate’s degree.” which i all have.
What are your thoughts on this?
And an associates is a 2 year degree you get before doing your bachelors.
Hope to hear from you soon!
My thoughts are good luck but I wouldn’t be putting money on you getting through. Asking & being rejected means having to say in the future you’ve had a visa rejected which can cause VWP problems but if you want to chance it knowing that then go ahead.
Aight true true, do you know if theres any email or number i can contact at the embassy to see if they can help clarify? Cause in the end i can do everything till i go to the interview and they ask to see my degree etc , correct?
You’ve got very little hope of getting it clarified beyond reading all their docs & trying your hand.
Yeh i know getting through to the embassy is a pain. So say i were to go ahead what sort of risks am i looking at other then it being denied? Eg, money wise mainly i guess
A few hundred bucks then the consequence of having being denied a visa to the US forever
denied visa to the US foreever? why so? where can i get info on that? and is that all kinds of visas?
Hi,
I have a commerce degree but my work experiences have been in hospitality/tourism. I was in the states a few years back and was on the j1 visa. I really want to move to the states but I know the E3 visa is a specialty visa. Do you think it’s worthwhile for me to do a postgraduate degree and apply for the E3 once I graduate or go to the states on the visa waiver and try to find a job? Ideally I would rather not do further study but just not sure how hard it is to find a sponsor.
Thanks for your help,
Pam
I skipped undergrad & did post grad & it worked out fine but AU post grad doesn’t have US post grad alumni (nor debt) so plan for the big picture
What did you study? I guess this means another 3-4 years in Melbourne 😦 On 15/10/2014 5:13 pm, “geoffmcqueen.com” wrote:
> Geoff commented: “I skipped undergrad & did post grad & it worked out > fine but AU post grad doesn’t have US post grad alumni (nor debt) so plan > for the big picture”
Melbourne != Stanford so depending on your sector you might as well go to Rainbow College
Pam, I wouldn’t bother with AU post grad if you want to be in the US. Come here with what you have – all you need is an offer letter
Really? Music to my ears 🙂 I just got a new job so will do that for a year to save some money and will follow your advice. Thanks for that. I was resigning myself to 3 years of essays and exams. Not fun! On 15/10/2014 5:51 pm, “geoffmcqueen.com” wrote:
> Geoff commented: “Pam, I wouldn’t bother with AU post grad if you want > to be in the US. Come here with what you have – all you need is an offer > letter”
One more question… Do you think it’s worthwhile to apply from Australia? I know mentioned it didn’t work for you but maybe you have a different perspective now?
No, same perspective. America still has high unemployment and lots of good people applying for jobs so unless you’re in a super shortage category you’ll get passed over
Hey Geoff,
I’m in the middle of going through the E3 visa process. I have a question in regards to the fee. I have paid the $225AUD when I made my consulate interview. Are there any other fees I need to know about??
Thanks,
Jo
I don’t *think so* but they could have changed since I did mine
It looks like it has changed to US$205 (AU$225).
HI Geoff
Awesome site thank you heaps!! I am currently in the process of ’employing myself’ via my LLC company here in Montana! I am a Registered Nurse on an E3 visa which expires in December. I have the company FEI number…all of the bells and whistles! I have friends who will guarantee me here (as my company does not have financial records yet!) I have investigated and I can go to Calgary for the ‘interview’ and to get my new E3. Question……do I need to fill out that 26 page nightmare of an I-129, Petition for a Nonimmigrant Worker form??? The first part of the 9035 form reads ‘submit a signed hardcopy of the LCA to the United States Citizenship and Immigration Services (USCIS) in support of the I-129, on the date of submission of the I-129;’ Your site does not mention it and I am hoping that as I have already passed all of the required criteria this may not be needed 🙂
Thanks Pam
Hi Geoff
OOPS sorry I should have waited with my questions before I had chugged through the entire thing with the I 129….the last 20 pages are for other visa types! However, still a few questions. ‘Provide the most recent petition/application receipt number for the beneficiary’ Is this my first application…..do I need my current employers number or is this my old DS 160 number? Basic info about proposed employment and employer. Business..Gross annual income and net annual income….? Do I give my current income, as the business hasn’t got any yet!!?? In which case do I put my tax number and SSN on the front page for my business? Small things that could make a huge difference!
Thank you
Pam
Hi Geoff
I’m in United States on E3 which I got by reading your great blog.
My wife is currently on an E3D visa and she is trying to obtain an EAD. The USCIS has asked her to provide an i129 petition form which I would have provided when I obtained my E3. I didn’t fill out I129 at the time of filing my visa.
Would you know anything about how to get an EAD and is it necessary to have i129?
Thanks
I think you’re on a wild goose chase. I don’t have a +1 so I haven’t experienced the E3D *but* I believe what you actually need is just her E3D in her passport, her printed i94 from the govt website and to go into Dept Social Security and get a social security # with the ‘non resident alien with work rights’ or whatever it says written on it. AFAIK, E3s don’t have/use the i129 nightmare petition.
Sumnesh, I know a couple of people who got their visa declined at Sydney whne they tried their own company or a relative’s company. I know Geoff did well and you too. Where there any red flags when they saw same director and same manager’s name and a virtual address/Phone number on LCA? How much capital did you need to show at the interview?
Hi tksk, They didn’t ask for any financials or my verify my US address. They did check that I”ve signed the LCA and I’m the person applying for visa. But I had a descent personal bank balance if they were to ask to cover my 1.5 year of salary. I think it has been mentioned on this blog that you need to have about 1 yr of salary that you will pay atleast as your capital.
Sumnesh, Geoff is right, my +1 got EAD by simply submitting her i94, passport visa and the original visa stamp from her passport (very important to show you have actually activated the E3.) All went well the 1 129 a bit of a red herring
Thanks Mike.
Do I need to get the photocopies certified?
Geoff, could you please throw some light on start up that one does not own or start but buys it later. What I mean is, one can ask a friend/acquaintance/doer to form an US company LLC and through this LLC get a job offer letter, LCA filed and get visa stamped and arrive in US.Once in US, one buys the company in his close relative like Wife/father’s name.
Do you see any issues with it at US consulate or USCIS?
If it looks legit on a google search as a company that can pay you you’re probably going to be ok
Geoff, on your original post re the LCA step i have one quick question. Section B is the temp need details re job/title/salary etc which is all straightforward. Section C is business name (same as the business incorporate din state of your choice), Section D however, asks for contact details of star member authorized to hire the applicant. Now if you start your own firm, and are a director/shareholder/member of that firm or have proxy vote over one of these, surely you can’t list yourself as the contact person, otherwise you’d be authorizing yourself to be employed. I’d imagine USCIS want separation between employer and employee, how do you navigate that section in the LCA? Would having a director of the firm as contact person other than yourself work? Great blog on this topic and others. (The LCA page may have changed a bit since you applied, currently page 2 of 5 section D asks for Employer Point of COntact Information, surname, given, job title, address city country telephone emails address etc.)
I made myself the LCA contact point & it wasn’t a problem. The judgment of “legitimacy” is made at the consulate on what seems more like a gut feel response to questions than black and white “what did they enter into the LCA fields” for this aspect. Like all things being over prepared (by putting someone else on your board in advance) so *if* it comes up you have it covered is the best path.
Another viable option could be to incorporate a LLC/Corp in own name and hire an Australian manager who you pay for his part time services. This manager will sign job offer letter and LCA.
Delaware/Wyoming incorporated entities do not show member/director/officers name in its public records or in Certificate of Formation, I do not think there is a way for a visa officer at consulate to find who is the actual owner of the company during visa interview unless they send one’s visa application for administrative process.
Does anybody see an issue with this option?
I guess the key point is how do you employ yourself, having a board who can out vote you and thereby your employment is one way? (your employment being separate to your ownership/share/membership) So who becomes the “Employer point of contact” is very important on the LCA application, as this person must have the authority to hire and is later asked to sign a declaration as to the accuracy etc of all the facts stated including agreeing in advance to assist in all ways with any investigation undertaken by the authorities in regard the immigration act.
Thanks for all the input on the options that I have put forward. After researching on LCA filing regulations and what an employer needs to maintain on public access for DOL inspection if requested for, my advice is to keep your records clear and as per regulations.
It is clearly mentioned in regulations that if employing entity’s structure changes, irrespective of FEIN remaining same or not, e.g. when entity is acquired or there is loss of a member in LLC or Board is dissolved or new Board members join or leave, entity can not continue employing sponsored employees unless all regulations are adhered to and records are kept for public access. The main regulations being employees being still paid equivalent to a US worker in specialty occupation and Employer/Employee relationship to sponsored candidate being maintained. Thus, a change in structure of an entity will mean unnecessary paper work and possibility of future scrutiny by DOL.
Hence, a better option would be as below:
1. Form a C Corporation
2. Make yourself and relatives/acquaintances its stock holders distributing the stocks in such a way that you are not a majority share holder. For example yourself holding 10% and your wife/father 90% of stocks.
3. Stock holders vote to elect a person (Acquaintance/Doer/Agent) as this corporation’s Board of Director for an agreed yearly compensation that could be minimum. When appointing this director, limit its duties in Director Appointment certificate as “Able to hire & fire corporation employees” but not able to issue shares or open bank accounts or sign commercial/private agreements/collaborations with any other party on behalf of the corporation
4. This director now hires you in a specialty occupation, signs the LCA and is listed as a point of contact on LCA
I have a query on point of contact address in LCA application. Since it needs to be an US address, how can we go for E-3 visa interview in Australia and say point of contact is me but my address is in US as listed in LCA?
Does this matter; I suppose it will work for somebody who already went to US and just came to Australia for getting E-3 visa stamped.
Reading the form the address for point of contact is not limited to that of a US address given one of the sections asks to define the country, its also more than likely that a person able to act in hiring matters for a new firm may be based outside of the country, less likely as the firm ages but at outset very likely.
Hi Geoff,
This blog is great and includes the most informative and helpful information I’ve come across in regards to obtaining this visa.
I am just after some advice, I’m at the initial stages of the process. I am a recent business graduate with a major in finance and after completing my finance major on exchange here in California – Los Angeles I finished my degree and am looking to start my career in the US. I was applying for jobs from Sydney, AU but did not get any responses and so left last week and am now physically in LA looking for work. I also have experience in sales as an insurance consultant for 2+ years.
,
I have been contacting recruitment agencies, attending job fairs and applying online but finding it quiet hard to get responses. Do you have any advice on where to look for a job or how to increase responses from employers?
Any advice you can offer is helpful and highly appreciated! Thank you for your time.
Mark,
As a recent graduate, wouldn’t you be eligible for a J1 visa?
I did a blog post on this topic, but the long and the short of it is that it is extremely difficult to get a job remotely.
http://www.limaechoecho.com/2013/07/how-can-australian-get-job-in-usa.html
Lee
Hi Geoff, it appears you now need an SSN or ITIN to apply for an EIN, so I’m not sure that it would be possible to go down the LLC path, unless you did this another way?
I haven’t done this for a while; can you get an ITIN without an SSN? I imagine the IRS is happy to take tax from whoever they can get it from, SSN or not…
An agent can do this for you, I just got mine via DelawareInc – https://www.delawareinc.com. The fee for foreigners to obtain EIN is $90 and it takes up to 2 weeks to get the envelope but you’ll actually receive the number via email in about 4 days.
Hi Geoff, thanks for all the information – it’s really helpful!
I’m currently on an E3 visa for my own Single Member LLC. For the E3R with the same LLC, will I need to produce income statements showing income tax etc?
If I do, I’ve been told by a couple of accountants I might have to change my SMLLC to an S-Corp to be able to pay myself as an employee, but of course this will come with a lot of additional expense – corporate tax return, changing business structure, payroll tax, paying for payroll tax services, etc – headache.
If you have any advice on documentation needed for the E3R application and interview that would be greatly appreciated!! Thanks a million 🙂
thank you!!it is really helpful
Geoff, thank you for your post- it is by far the most helpful E3 guide online!
I am planning to have my boyfriend (who is a US citizen) set up an LLC, and then process my E3 through the LLC (and I can then contract out to several part-time positions on one E3).
In your experience, does the LLC have to be able to show an income stream before an E3 will be approved?
I’m also wondering what the benefits of setting up the LLC in Delaware might be, as opposed to CA where I’ll be living and hopefully working.
Thanks in advance!!!
Delaware is good at LLCs, but you can do them anywhere.
You might get lucky with your approach of contracting through an LLC, but it isn’t what the visa is for and if the consular officer doesn’t think the company is the real deal (legitimate, established, with the means to pay you) you may well get rejected. Once that happens, you have a very big problem on your hands.
Why not apply for a job in the US with your profession, and once you’re here, set up the LLC and start doing side projects? When you want to switch over properly, it is easy to go to Mexico/Canada and get an E3-R and switch it to the LLC once it isn’t just a shell.
Thanks for the reply, Geoff.
I am already here, and finding full time work is tough in my field!!
If I am able to secure an E3 with a company (full or part-time), I’m wondering how I would set up the LLC and start doing side projects as you suggest without that company being a shell? It’s kind of a chicken before the egg situation- I can’t work for the company before I’m sponsored to, but the company can’t make money before I work for it…
The company can certainly be a clean shell with no revenue/clients at the start (it has to be that way) and there’s nothing stopping you from starting that on the side once you’re in the US (that I know of – and I know people who’ve done just this; been moonlighting and then took the plunge through an E3-R once they built it or their savings up enough to make it happen). The point though is when you *get* your E3, you need to make sure the consular officer looks at the company employing you and can be confident they’re the real deal.
Got a job last month in US in IT field and had applied for E3 in Melbourne last week. Got my visa issued. I should say, Thanks a ton to Geoff for this post and for providing loads of info on E3 visa.
Is there a savings requirement for the E3, if so do you know how much?
Not if the company sponsoring you has capacity to pay. You personals savings are irrelevant.
Hi Geoff and Everyone,
I just had a quick question and would appreciate if anyone could give me some advice on it.
I have a job offer on contract basis for 6 months, with the high possibility of extension for couple years after that. I was wondering if that job offer along with an approved LCA could get me an E3 visa?
Thanks for you advice in advance,
Kaveh,
The problem is that your LCA for the position would only be for 6 months. The offer letter the company would write for you has to state a discrete end date for your employment. So this would mean a 6 month E-3, then followed by having to apply for a new E-3 at the 6 month mark if they wanted to extend you. I’m also not sure whether you would run into issues with immigration not treating a contract as a seriously as a full time job offer.
Lee
Thanks for your response Lee,
Would you know if I have to leave the us for another interview in order to extend my 6-month E3 visa or I just need to do the paperwork with the USCIS in the states?
Really appreciate your response,
HI Geoff,
Thanks for all your post this is agreat place to find teh answers.
Just wanted to check if an E3 visa holder can apply for GC in USA.
Coming to my backgrounds I moved to US on a E3 last month and my wife has applied for an EAD and it is in the process now.
My wife had studied in USA and worked us on HIB- VISA in 2009 for a year before moving to Aus.The H1B for my wife expired in 2012.
We would like to know which would a better chance for us to apply for GC it’s me or my wife ?
and do any one of us need to change the status to H1 ?
Or how long we could stay on E3 in USA?
Reagards
San
Hi San,
I applied for and received my green card while on an E-3. http://www.limaechoecho.com/2012/11/e-3-visa-to-green-card.html
In terms of better chance, it depends on which one of you is able to demonstrate that your position is more specialized. Read my blog post, but basically it is better to be an EB-2, which requires a masters degree, or an EB-1, which is usually PhD level and above.
Lee
Hi, Geoff
Great article – thank you! I have been in the U.S. since 2011 on an F1 visa. My bachelors degree (anticipated 06/2015) will be in Public Policy – though I am recruiting for jobs in human capital consulting and exec searching consulting (/headhunting).
In your opinion – will my degree pass the ‘relevancy’ test for these sorts of jobs? I consistently run into issues with companies when they realize I need H1B sponsorship and getting the E-3 visa would make things so much simpler.
Thanks
I’m not an expert, but I think you’ll be fine. Many people in the US get a “liberal arts” degree which isn’t specialist in any way, but they still count. In my experience and hearing from others, the degree is a threshold of competence, and the role is actually where the test is – you can have a PhD but a job offer to be a kitchen hand will be turned down. I think you’ll be able to sell your story without too much difficulty.
Hi Geoff,
I am on an E3 right now. I received a promotion and may wages changed. Do I need to notify anyone?
Also I am looking to change employers in the new year. In your experience how quickly can this process be done in Canada?
Thanks!
Mariola
Unless you are getting paid less than your LCA, I think you’re fine. The LCA exists to make sure sneaky grubby foreigners don’t undercut American jobs, so if you got a promotion, all good.
Hi Geoff,
Thanks so much for this guide. It has been really helpful.
If I signed up for an Earth Class Mail account for my LCA, and my LCA is now approved, do I need that account any more? or is it safe to cancel it?
I’d say so – I’ve never gotten any mail from the Dept of Labor (who’s agreement/approval belongs to the company anyway) or immigration.
Thanks again Geoff. I was actually declined at the consulate for the E3 because of the board of Directors question. They said that they need to see a corporate structure of people who have hiring and firing power in order to grant the E3 – you may want to add a caveat to your list of fallacies.
Thanks for the info James – what consulate was that at? And had they already asked questions about the viability of the business (and gotten answers like “it is a startup”) that might have made them pay more attention?
It was at the consulate in SydneySydney (annoying as I live in Brisbane – a long way to come for a 5 minute rejection!) They asked me how many employees the company has and I said it was just me. I told them about my company in Australia and what I do (digital marketing, communications strategy and web development) and the board of directors was their next question.
I’m guessing now if I establish a board of directors and re apply they are going to be pretty suspicious based on the previously failed application?.. I think it might be time for a lawyer. 🙂
Yeah, the “just me” thing is the red flag there…
Having just read about James and his declined E-3 based on the board of directors I’d like to advise everyone to consider using a different person as the owner of the company. After all, sponsoring yourself is exploiting the E-3 visa loophole and screaming about it out-loud while having someone else sponsor you on behalf of your own company is pretty much just doing the same but keeping it quiet from the eyes of the officer.
If you setup an LLC in Delaware no information about the company is public (owner, address etc.). So do it yourself as a COMPANY LLC. Then ask a friend or whoever to give you a permission to use his or her name to file the LCA as if it was his or her company. I believe there is nothing illegal or dodgy about it as long as it is a legitimate business that you want to grow and pays your salary.
To me it seems like officers at Australian embassies think that the LCA office does the job of company verification and a valid LCA = legitimate company. That is what call the “E-3 loophole” and showing the officer that you want sponsor yourself only triggers the question whether the company is legitimate – they don’t otherwise have any doubts that it is.
Yes in retrospect I really wish I’d done this. Now I’m pretty sure that the E3 avenue through my own company is closed to me because any further attempt will trigger some red flags.
In addition to my comment above, they also asked “when was the company established”. As I’ve only set it up in recent months I think that also triggered some red flags. They obviously want more proof that it’s an established legitimate company.
Did you have proof of the success of the Australian business? When I got my E3 it was a solo company and I had signed my own letter of offer, but the AU company had decent revenues and staff (and I explained it was about expansion, not because I wanted to just move to the US solo).
I had proof with me (P&L of this financial year so far – so 6 months – which was already more than the salary I’d proposed to pay myself), but it never got to that point. They never asked for it and to be honest I was so shocked with the denial that I didn’t think to argue further.
Maybe I wasn’t clear enough with the officer about that my Australian company had been around for 5 years, and that I too was looking to move to the US to pursue a growing interest in my services. Lots of things to think about in retrospect.
I plan on establishing a board and trying again early in the New Year, I’ll let you know how I go. Do you know if anyone sit on the board (I’m thinking of using the General Managers / CEO’s of companies I do a lot of work with)? or do they have to be US citizens?
Hi James, you will need someone in the US on your board I was advised by my immigration lawyer.
Hi Geoff,
Thank you so much for ur article it has been so helpful and I have shared the love with others who are trying also.
It has takening me 5 months to get everything all sorted but I have my appointment on thurs. Which I’m super excited but a little nervous about!!
Can I ask two things:
1. I went back to the US in oct after being in NY for 3 months from June – sept on my ESTA, I reapplied for my ESTA and was denied access at LAX and was sent home, they said I need to wait for my visa to be approved to return to the US as I had come and gone to the US in April and June- sept. Will this affect my application?
Also I have been working from Aus with my US clients? Will this impact also?
Thanks,
Ali
Hi Geoff,
Thanks so much for your article, most helpful.
I have my appointment on Thursday and I am wondering how you go about answering questions as I have heard that you should keep brief and not to give to much away.