Does a first E-3 visa need to be issued in Australia?

A question often asked by Australians is whether someone’s first E-3 visa needs to be issued from a U.S. consulate within Australia, even where the applicant is already in the U.S. A range of factors can largely determine the answer, as well as the applicant’s personal and professional circumstances. First, it’s important to outline some common scenarios where this question can arise:   

1.   An applicant is located in Australia and is applying for their first E-3 visa;
2. An Australian is physically located in the U.S. traveling under the Visa Waiver Program; or
3. An Australian is physically located in the U.S. with a visa status that permits them to change status to E-3.

Where an applicant is located in Australia, they should always file their application at a U.S. consulate within Australia. Where an applicant is traveling in the U.S. under the Visa Waiver Program and they subsequently receive an E-3 job offer, they should return to Australia to present their E-3 application. Although some applicants have been successful in receiving their first E-3 at a consulate outside of Australia, the Department of State requires that all first-time E-3 applicants file their application within Australia.

The third scenario above can arise where an applicant is already working in the U.S. in another visa classification, and needs to change their status to E-3. After a Change of Status application is approved, USCIS will issue an approval notice (I-797) showing the new nonimmigrant status (E-3) and the corresponding validity dates. In this scenario, it’s important to understand the function of the approval notice. The validity date shown on the notice highlights the foreign national’s new status in the U.S., and also the time-frame in which they can subsequently apply for the E-3 visa itself at a U.S. consulate. These dates have a different meaning to the validity dates shown on a visa stamp. Visa stamp validity dates show the date range a nonimmigrant can approach a U.S. port of entry to request admission.

If the E-3 worker subsequently departs the U.S. after a Change of Status is approved, they must apply for their first E-3 visa stamp while abroad. Without doing this, it’s almost certain they would be denied re-entry to the U.S. Visa stamps cannot be issued from inside the U.S. Having the E-3 visa placed in their passport while abroad will allow them to return to the U.S. to continue their work in E-3 status.

The question arises whether the applicant must return to Australia to receive their first E-3, after the Change of Status has been approved. As mentioned, the Department of State requires that all first-time E-3 applicants file their application within Australia. Although some applicants have successfully received their first E-3 visa at consulates outside Australia, this approach can carry unnecessary risks and an increased chance of a denial. U.S. consulates in Australia are very knowledgeable in the requirements and procedures for E-3 applications, more so than other U.S. consulates. Some consulates may not be accustomed to processing E-3 visas at all, and may not be aware of the educational standards or norms associated with E-3 applications.

There are other factors that must be considered when determining the best approach for an E-3 application. Understandably, travel costs, timing as well as business considerations all play a part in determining one’s overall strategy. An experienced immigration attorney can assess these factors in detail, and determine the best strategy based on each applicant’s personal and professional circumstances.

Note that this information is provided for educational purposes only. Always check the most recent rules for each consulate as they apply to renewing an E-3 visa. As each immigration matter is different, this general information should not be relied upon as legal advice. You should consult with an experienced U.S. immigration attorney before making any decisions applicable to your specific circumstances. 

Andrew David

Andrew David is the principal of David Immigration Law PLLC, and one of very few dual-citizen lawyers qualified to practice law in both the United States and Australia. Andrew advises individuals, small- and medium-sized businesses, and large multinational companies on U.S. immigration law and procedure.