If you are not able to satisfy any of the E-3 Visa requirements or an E-3 Visa is not a suitable option for you for any reason, there are various other options to allow you to work for your employer legally in the U.S., including the following:
1. H-1B Visa: This is a general U.S. work visa for every nationality, not only for the Australian nationals.
The disadvantage of H-1B Visa is its “annual quota”, which limits the total number of H-1B Visas that can be issued each year. This makes many applicants lose their opportunities to obtain their work visas and therefore lose their employment unless their employer is content to wait until the following year before they are able to apply for their H-1B Visa again. Of course, even in the following year, there is no guaranty that the applicant will be selected into the quota and obtain his/her H-1B Visa.
Although E-3 Visa has its own annual quota, 10,500 per year, it is very rare that it is used up in any year. Therefore, as long as the applicant satisfies all the requirements of an E-3 Visa, he/she will be able to obtain it without any concern about failing to be selected into the quota or losing their employment.
However, the advantage of H-1B Visa is that it is a dual intent visa, which permits an immigrant intent. Therefore, even if the applicant had ever filed a permanent residency application before, it will usually not have any affect on his/her ability to apply for or extent his/her H-1B status. This will remove the need to apply for an adjustment of status, employment authorization and advance parole early on time, as mentioned above.
2. O-1 Visa: O-1 Visa is another visa which will allow you to work for your employer in the U.S. You can have this visa sponsored by either your employer or an “agent”, a person or entity who will constantly find jobs for you. O-1 Visa does not have any annual quota.
However, for most people, this is more difficult visa to obtain than E-3 or H-1B Visas, as this visa requires a demonstration of a highly distinguished ability and achievements over those of most other professionals in your field.
There are persons for whom the O-1 visa is the best option. If you are a highly skilled professional with awards for achievements and highly recognized contributions, please contact our attorneys to inquire about your chances for O-1.
3. J-1 Visa: The J-1 Visa, which includes the “Working Holiday Visa” for Australian and New Zealand nationals, can enable you to work in the U.S. temporarily, if the sponsoring entity is registered in SEVIS. The J-1 Visa also allows you to work for your employer in the U.S., and is much easier to obtain than the above visas.
However, J-1 Visa is not a dual intent visa, and also, depending on the discretion by the issuing Consular officer, you may be subject to the “Foreign Residency Requirement”, meaning that you will not able to apply for permanent residency, change your status in the U.S., or apply for H and L Visas through any U.S. Consulate, before you finish staying in your country of nationality for at least 2 years after your J-1 program, unless you obtain a waiver against this requirement.
4. F-1 Visa: While you are studying in the U.S. with F-1 Visa, you may be allowed to work for your employer by using CPT (Curricular Practical Training) or a practical training component of your syllabus (e.g. nurses doing paid work at hospitals as a part of their syllabus), or if your school DSO (Designated School Official) allows you to work.
5. Permanent Residency Application: A work visa is not a prerequisite for obtaining permanent residency. However, as the permanent residency application procedure takes a number of years, most people need work visas or some other status which will allow them to work for their employers in the U.S. until their permanent residency status (or employment authorization) becomes approved and issued.
However, if your employer is content to wait for you or allow you to work remotely from outside the U.S. until your permanent residency or employment authorization becomes issued, you will not need to stay in the U.S. to work for your employer.
Please note that, even if your employer allows you to work “remotely”, it will be better to work as an independent contractor rather than a regular salary-paid employee, as it may violate the provision against “unauthorized employment” in the U.S. immigration law.
Certain persons with distinguished careers and advanced degrees in industries of national importance to the United States may qualify to self-petition for permanent residency under the National Interest Waiver “NIW” program. If you believe you may qualify for the NIW program, our experienced attorneys can provide a free evaluation of your credentials.