Fact Sheet #62Y: What are the requirements to participate in the E-3 program?

This fact sheet provides general information about the requirements administered by the Wage and Hour Division (WHD) concerning the temporary employment of foreign nationals from Australia in specialty occupations under the E-3 program. Specialty occupations are jobs that require theoretical and practical application of a body of highly specialized knowledge and 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. Employers seeking to hire workers under the E-3 visa program must first file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). Australian nationals seeking E-3 visas must have a job offer from a U.S. employer and can apply directly at a U.S. Embassy or Consulate abroad. If an eligible applicant is in the U.S. and in valid nonimmigrant status, the applicant may apply for E-3 status by submitting a change of status application to a United States Citizenship and Immigration Services (USCIS) Service Center. The E-3 visa classification is limited to 10,500 nationals of Australia. The period of employment is up to a maximum of two years. Renewals beyond the two-year period for the E-3 visa will require the filing of a new LCA.

All employers who employ a worker under the E-3 visa program must comply with the following:

• Maintain an LCA (Form ETA 9035 and/or ETA 9035E) with true and accurate information for each permanent work site;
• Pay the “required wage rate” applicable to the E-3 worker at each permanent work site;
• Offer the same working conditions and fringe benefits to the E-3 worker that are offered to similarly employed U.S. workers.  Examples of such conditions and fringe benefits include:
  1. FLSA overtime pay (for non-exempt workers);
  2. Health, life, disability, and other insurance plans;
  3. Retirement and savings plans;
  4. Cash bonuses;
  5. Leave, vacation, and sick leave (e.g. FMLA, leave of absence, etc.); and
  6. Non-cash compensation such as stock options (whether or not performance based);
• Attest that it will not employ a E-3 worker where there is a strike/lockout in progress in the worker’s occupation;
• Notify its employees or their bargaining representative of the intent to employ a E-3 worker at any location where other workers are in the same occupational classification for which a E-3 worker is sought or placed;
• Provide a copy of the applicable LCA to each E-3 worker;
• Maintain and make available for public examination the LCA and other required documents;
• Must not allow the E-3 worker to pay any early cessation penalty (see Fact Sheet #62H);
• Must not retaliate or discriminate against any worker who (a) discloses information that (the worker believes) shows a violation of this program or (b) cooperates with any proceeding concerning the employer’s compliance with this program (see Fact Sheet #62R); and
• Must provide payment to the E-3 worker for all work-related expenses, such as tools and equipment, or travel expenses incident to and necessary to the employer’s business.

The H-1B program’s portability provisions (see Fact Sheet #62W) are inapplicable to E-3 visa workers.

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(t), 8 U.S.C. § 1182(t).