Skip to main content | Skip to main navigation

       
  leftbg

News:

FSIS website under construction
Starting September 20, 2013, we'll be making changes to the format of our website. We ask for your patience as this may be a lengthy process. Contact Signe at signen@hawaii.edu if you have problems with website functionality or navigation.

New I-94 procedure
From April 30, 2013, U.S. Customs and Border Protection (CBP) will begin implementing a paperless I-94 procedure at U.S. air and sea ports of entry.

FSIS's holiday schedule
FSIS will close from December 25 and will reopen on January 2.

EB immigrant visa availability
U.S. Department of State's monthly Visa Bulletin


Sponsoring E-3 Employment



STEP 1: UH job offer

STEP 2: Determine E-3 eligibility

STEP 3: Prepare E-3 request

STEP 4a: E-3 entry or
STEP 4b: E-3 petition



STEP 1: UH job offer [top]

Prospective employees can only enter the U.S. in E-3 status with a job offer from a U.S. employer. Likewise, if a prospective UH employee is already in the U.S. and needs E-3 petition approval for a change of status, change of employer, or concurrent employment, UH can only file a
E-3 petition on his/her behalf if he/she has accepted a job offer from a UH department (i.e. an employment relationship exists between the UH department and the foreign national).

Once a UH department enters into an employment agreement with a foreign national, the department must determine whether he/she is eligible to work in the U.S. If he/she does not already have employment authorization that will allow him/her to work at UH, he/she will need the proper authorization before employment can begin. The E-3 classification may be an option for work authorization if the eligibility requirements are met.

NOTE: UH does not classify stipend recipients (e.g. post-doctoral fellows) as employees. This means UH cannot seek E-3 classification for foreign nationals coming to UH as stipend recipients. Instead, the J-1 Exchange Visitor classification may be the most appropriate immigration status for such appointments.



STEP 2: Determine E-3 eligibility [top]

Minimum E-3 eligibility requirements:

  • The position must be in a “specialty occupation." The position must require the theoretical and practical application of a body of highly specialized knowledge AND at least a bachelor’s degree (or its foreign equivalent) in the specific field. (This is the same standard as the one used for H-1B specialty occupations.)
  • The individual must meet the requirements for the position. The individual must have the required educational degree in the specific field or its equivalent through education, training, and experience and any necessary licenses. Degree equivalents for E-3 eligibility purposes include:
    • Bachelor’s Degree = 3 years of progressive experience for each year of formal education the individual lacks.
    • Master’s Degree = Bachelor’s degree + at least 5 years of progressively responsible experience in the specialty.
    • Doctorate = No equivalent. If the job requires a doctorate, the individual must have it.
  • JABSOM positions: If the position involves direct (not incidental) patient contact and the employee is a graduate of a foreign medical school, he/she must meet these additional requirements:
    • Passage of one of the following exams: Federation Licensing Examination (FLEX) parts I and II OR an "equivalent examination as determined by the Secretary of Health and Human Services" (HHS). HHS has designated only two exams as being equivalent to the FLEX for E-3 purposes: (1) National Board of Medical Examiners (NBME), Parts I, II, and III OR (2) United States Medical Licensing Examination (USMLE), Steps 1, 2, & 3.
    • Competency in oral and written English shown by passage of an English proficiency exam acceptable to the Educational Commission for Foreign Medical Graduates (ECFMG). ECFMG accepts and evaluates TOEFL scores.
    • A full and unrestricted license to practice medicine in a foreign country or have graduated from a medical school in a foreign country.
    • A license or other authorization required by the state in which the Foreign Medical Graduate (FMG) will practice or receive graduate medical education or training.


Annual E-3 "cap"

A maximum of 10,500 E-3 visas can be issued annually during each fiscal year (October 1 - September 30). E-3D spouses and children do not count toward this quota, nor do applicants extending their E-3 statuses within the U.S. with the same employer.



STEP 3: Prepare E-3 request [top]

After determining that
E-3 classification is appropriate, the department should begin the E-3 request process. Individuals may obtain E-3 status through (A) entry to the U.S. from abroad with an E-3 visa or (B) by USCIS petition approval while present in the U.S. Be sure to submit E-3 requests to FSIS by the recommended deadlines (see below). Submission of a late request may result in an E-3 beneficiary's inability to start/continue employment on time or even the loss of legal immigration status in the U.S.

(A) E-3 entry requests: UH departments should submit these types of requests to FSIS through their respective colleges/schools no later than 45 days prior to the requested E-3 start date. FSIS will seek approval of a labor condition application (LCA) from the U.S. Department of Labor (DOL). An approved LCA is necessary for the beneficiary to obtain an E-3 visa from a U.S. embassy/consulate to enter the U.S.

(B) E-3 petition requests: UH department should submit these types of requests to FSIS through their respective colleges/schools no later than 4 months prior to the requested E-3 start date. FSIS will seek LCA approval from DOL as well as E-3 petition approval from the U.S. Citizenship and Immigration Services (USCIS). Note that Premium Processing Service with USCIS is not currently available for E-3 petitions. UH must receive petition approval from USCIS before the beneficiary can begin E-3 employment. Please note the following important information pertaining to petition requests:

  • Petitions for E-3 extension, change of status, change of employment, and change of employer must be received by USCIS no later than the business day on or before the employee’s current status end date.
  • Changes of status to E-3: If an employee travels abroad while his/her change of status petition is pending with USCIS, he/she will abandon the change of status. Therefore, UH should either file the petition after he/she returns to the U.S. OR file the petition early enough to obtain an approval before he/she leaves the U.S.
  • The department should ask the E-3 beneficiary of he/she is:
    • An F-1 student whose F-1/OPT end date will occur more than 60 days prior to the intended E-3 start date; or
    • A J-1 exchange visitor whose program will end more than 30 days prior to the intended E-3 start date; or
    • Subject to the 2-year home country residence requirement stemming from current/prior J-1 or J-2 status and has not fulfilled or received a waiver of the requirement. If so, the person is not immediately eligible for a change of status to E-3. To acquire E-3 status, he/she must leave the U.S., obtain an E-3 entry visa from a U.S embassy or consulate, and then enter the U.S. in E-3 status.
  • The department should ask the E-3 beneficiary whether he/she has any family members who require an E-3D change of status or extension.
  • UH can request up to 2-year periods on E-3 petitions.
  • UH can submit a petition to USCIS up to 6 months prior to the intended E-3 start date.

The E-3 request process is as follows:

FIRST, the UH department must ensure it will pay the E-3 employee the required wage (i.e. the actual wage or the prevailing wage, whichever is higher). UH colleges/schools are prohibited from paying E-3 employees less than the actual wage or the prevailing wage. FSIS will not process an E-3 request if payment of the required wage cannot be verified.

  • Actual wage determination: To determine the actual wage, the college/school/department must complete the Actual Wage Calculation Form. This form, along with a completed Actual Wage Statement, must be sent with the E-3 request to FSIS.
  • Prevailing wage determination:
    • Faculty positions: Since the UHPA collective bargaining agreement contains minimum salary amounts, FSIS can rely upon the CBA as the prevailing wage source.
    • APT positions: Since APT salaries are determined by a salary schedule, FSIS can rely upon the HGEA collective bargaining agreement as the prevailing wage source.
    • Non-union positions: FSIS may need to obtain a prevailing wage determination (PWD) from the U.S. Department of Labor prior to completing the E-3 LCA/petition. PWDs can take up to 2 months to obtain, so departments should allow extra time for non-union positions.

SECOND, the UH department works with the E-3 beneficiary to obtain necessary information and documentation for the E-3 request. The department should complete/gather their portion of the following documents for the E-3 request:

THIRD, the department forwards the E-3 request documents to the Administrative/Personnel Officer (AO/PO) for the college/school/unit.

FOURTH, the AO/PO reviews the request, attaches additional documents, and sends the complete E-3 request to FSIS, Attn: Signe, PSB 102-106. FSIS will review the request and may require additional/revised documentation before completing the LCA or petition.



STEP 4a: E-3 entry [top]

This information applies only to individuals acquiring E-3 status through entry to the U.S. Ignore this section if the person will obtain E-3 status via a petition filed with USCIS.

After receiving the E-3 entry request packet from the college/school/unit's AO/PO, FSIS will complete the following:

  • Obtain a prevailing wage determination, if necessary
  • Forward labor condition application posting notices to the AO/PO (non-union positions only)
  • Send a notice of filing to the appropriate collective bargaining representative (union positions only)
  • File a Form ETA 9035 Labor Condition Application and receive approval from the U.S. Department of Labor

FSIS will send a copy of the certified LCA to the AO/PO for the E-3 beneficiary along with a memo containing information on visa application procedures. The UH department should provide the person with the following items:

  • Copy of the Labor Condition Application (LCA), certified by the U.S. Department of Labor
  • UH employment offer letter
  • UH position description as documentation that the position qualifies as specialty occupation employment

After the beneficiary receives the above documents from the UH department:

FIRST, he/she must apply for an E-3 visa at a U.S. embassy or consulate outside the U.S. He/She should generally apply at the U.S. embassy/consulate having jurisdiction over his/her place of residence. Although he/she may apply at any U.S. embassy/consulate, it may be more difficult to qualify for the visa outside his/her country of citizenship or permanent residence. If he/she was ever a visa overstay in the U.S., he/she must apply for any new visas at a consular office in his/her country of nationality.

He/She should check the U.S. Department of State's U.S. embassies and consulates website for visa application requirements and to make an appointment for a visa interview. E-3 visa application requirements differ by embassy/consulate, so he/she must check with the specific U.S. embassy/consulate on the requirements for the visa application. Listed below are some of the documents that will be required at the visa interview, including a few documents that must be provided by the UH department:

  • Proof of Australian citizenship (e.g. valid Australian passport)
  • Copy of a UH-filed LCA, certified by the U.S. Department of Labor
  • UH employment offer letter
  • Documentation that the position qualifies as specialty occupation employment (e.g. UH position description)
  • Proof of eligibility for employment in a specialty occupation (i.e. diploma/transcript showing the requisite degree and/or other credentials and required licensure)
  • Proof that the stay will be temporary (however, permanent labor certification or an immigrant petition should not be the sole basis for a visa denial)
  • Proof of payment of the Machine Readable Visa fee

SECOND, after receiving an E-3 visa from a U.S. embassy/consulate, the beneficiary must apply for entry in E-3 status at a U.S. port of entry. He/she should bring the following items to the port of entry:

  • Valid E-3 visa in passport
  • Australian passport valid for at least 6 months beyond the LCA end date (if the passport will expire before the LCA end date, he/she will be granted a shorter period of stay than is printed on the LCA, so it is best to renew the passport before entry)
  • Proof of Australian citizenship (if he/she doesn't have an Australian passport)
  • Copy of the UH-filed LCA, certified by the U.S. Department of Labor
  • UH employment offer letter from the UH department
  • Documentation showing that the position qualifies as specialty occupation employment (e.g. UH position description)
  • Proof of eligibility for employment in a specialty occupation (i.e. diploma/transcript showing the requisite degree and/or other credentials and required licensure)
  • Proof that the stay will be temporary

Also, each E-3D dependent should bring the following items to the U.S. port of entry:

  • E-3D visa in passport (N/A for E-3D dependents who are Canadian passport-holders)
  • Passport valid for at least 6 months beyond the LCA end date (if a passport will expire before the LCA end date, that person will be granted a shorter period of stay than is printed on the LCA, so it is best to renew the passport before entry)
  • Copy of marriage certificate for E-3D spouse
  • Copy of birth certificate for each E-3D child
  • UH employment offer letter from your UH department (to show financial support)

Individuals are not guaranteed entry to the U.S. The U.S. Customs and Border Protection (CBP) officer at the port of entry will review all immigration documents and ask the person questions about his/her stay. These officers have the discretion to admit a person in E-3 status and any family members in E-3D status and may refer them to a more detailed secondary inspection.

When the E-3 employee is admitted into the U.S., his/her documents should be returned and he/she should receive an admission date stamp in his/her passport with the notations “E-3” (principal E-3 worker) or “E-3D” (dependents) and a date indicating the period he/she is authorized to stay in the U.S. He/she should also receive instructions on how to print an I-94 arrival record on CBP's I-94 website. The admission stamp with notations and the I-94 printout function as proof of admission to and legal immigration status in the U.S. In some cases, a person may be issued a paper I-94 at entry, but CBP is phasing out this process. If he/she is issued a paper I-94, that card is evidence of his/her legal status in the U.S.

E-3 employees and E-3D family members should keep copies of all passport biodata/expiration pages, visas, admission stamps, and I-94 records permanently in case any of the documents are lost or stolen.

After the E-3 employee arrives in the U.S., the following E-3 documents should be sent to FSIS so we can update our records and check that he/she was admitted properly at the port of entry:

  1. Completed Contact Information Form
  2. Copy of I-94 card or I-94 printout from CBP's I-94 website
  3. Copy of admission stamp with notations in passport
  4. Copy of E-3 visa in passport
  5. Copy of passport biodata page (if new/renewed)
  6. Copies of #2-5 for each E-3D dependent (if applicable)

 


STEP 4b: E-3 petition [top]

This information applies only to E-3 petitions filed with USCIS. Ignore this section if the person will obtain E-3 status by entering at a U.S. port of entry.

After receiving the E-3 petition request packet from the college/school/unit's AO/PO, FSIS will complete the following:

  • Obtain a prevailing wage determination, if necessary
  • Forward labor condition application posting notices to the AO/PO (non-union positions only)
  • Send a notice of filing to the appropriate collective bargaining representative (union positions only)
  • File a Form ETA 9035 Labor Condition Application and receive approval from the U.S. Department of Labor
  • Complete USCIS Form I-129, Petition for a Nonimmigrant Worker & E Supplement
  • Revise Form I-539 (if applicable)

FSIS will send the completed E-3 petition to the AO/PO along with a copy of the LCA for the E-3 beneficiary and a memo regarding the current USCIS fee amounts* and proper USCIS mailing addresses.

* E-3 employees are prohibited from paying any of the fees associated with filing E-3 petitions. The UH college/school/unit/department is responsible for paying all E-3-related fees (excluding the Form I-539 filing fee for E-3D dependents).

USCIS receipt

When the petition and filing fees arrive at USCIS, USCIS will issue a receipt notice to FSIS as long as the E-3 petition is properly and timely filed.

Change of status to E-3: If UH is filing a petition for a change of status to E-3 from another nonimmigrant status (e.g. F-1, J-1), the E-3 beneficiary should not leave the U.S. until the petition is approved by USCIS. If he/she leaves the U.S. while a change of status petition is pending with USCIS, the change of status will be abandoned. Departments should find out whether an E-3 beneficiary will need to travel abroad while the petition is pending before the petition is sent to USCIS.

Concurrent E-3 employment or change of E-3 employer: UH employment may not begin until USCIS approves the E-3 petition.

E-3 extension: If an E-3 extension petition is properly filed with USCIS by the E-3 end date, USCIS will issue a receipt notice. The employee may remain in the U.S. while the extension is pending. However, if the E-3 extension petition is still pending when the prior E-3 approval period expires, the employee must stop working. Unlike other nonimmigrant statuses (e.g. H-1B, TN, etc.), the automatic 240-day extension of work authorization is not yet applicable to E-3 status holders.

USCIS processing time

  • Regular Processing: Takes 2-4 months on average.
  • Premium Processing Service: Not currently available for E-3 petitions. 

See the USCIS Case Status Service website to check the status of pending petitions and to see average processing times.

USCIS approval

Once the petition is approved, USCIS will send an E-3 approval notice (Form I-797 Notice of Action) to FSIS. FSIS will transmit the following documents to the AO/PO:

  • Memo to the employee (the information provided in this memo will differ depending on the type of petition that was filed on the employee’s behalf)
  • Original E-3 approval notice: This should be given to the employee, who should keep the bottom portion of the notice in his/her passport. The original top portion of the notice, which is the employer's copy, will be kept in FSIS files.
  • Contact Information Form (only for new E-3 employees)

E-3 status will automatically begin/continue upon the E-3 approval notice start date. The employee does not need to leave the U.S. and reenter to begin/continue E-3 employment.

If an E-3 beneficiary cannot begin employment at UH for any reason, the department must notify FSIS immediately.


rightbg