Bringing Over Australian Nationals to Work in your Australian-Owned US Business: the E-2 Essential Employee Visa (General Guidelines)

Australian nationals are eligible for E-2 treaty investor visas. Certain Australian-controlled businesses in the US may petition to bring over Australian workers who have “essential skills” need by the US business.

Eligibility for an E-2 Essential Worker Visa to Work at an Aussie-Owned Business in the U.S.:

To be eligible for an E2 visa as an “essential” employee for a U.S. business, the following must be true:

• You have a job offer from a U.S. company that matches with your skills and experience;
• Though not a rule written in the law, the U.S. consulates typically examines the wage being offered and makes sure it is at least what the U.S. Department of Labor cites as the prevailing wage for that job in the city where you will be working;
• You are Australian and the business is at least 50% owned and operated by Australians.
• The owner of the US business is actually developing and directing the US company. For example, if an Aussie company owns the US business, your application must demonstrate that the Aussie company is actually running the US business. Or if the US business is owned by an Aussie individual, you must show they are actually running the US business (the clearest example would be if they are in the US on an E-2 visa). If the US business is majority owned and run by an Australian national who is a US permanent resident, they business is NOT qualified to bring over E-2 essential workers.

For a free assessment of whether you qualify for an E-2 essential worker visa, please e-mail us or call our office (1-312-803-0360).

How Do I Prove that I am an “Essential” Worker to the U.S. Business?

This is the issue that causes many E-2 Essential Worker visa applications to fail. It is not enough to simply show that you are qualified for the job being offered in the US business. You must show that you have specialized skills that are needed by the US company and which cannot readily be found in the US workforce. It is important that the application properly demonstrates that this worker has unique skills and/or specialized knowledge of the company’s operations that could not be quickly taught to a qualified US worker.

Are There Other Visas that Australian Workers May Qualify For?

Yes. Australian workers may qualify for many other visas, such as the E-3, L-1, or H-1B.

The E-3 work visa is a great option for employees with University degrees or substantial work experience related to the job in the US. You can read more about the E-3 visa here.

One benefit of the E-2 visa is that it does not have a University degree requirement or minimum amount of years of experience like the E-3 visa.

How do I Apply for an E-2 visa?

The application is either (1) sent to the E Visa Unit at a US Consulate in Australia or (2) in some circumstances you can apply to USCIS to change your status to E-2 from within the US (but visas can only be issued at US consulates).

For option 1, we prepare the visa application package (which is usually hundreds of pages in length) for our clients in the style/order that is preferred by the E Visa Unit. We then submit the application to the investor visa desk at the appropriate consulate in Australia. Then the US Consulate will do an initial review of the application within 10 business days and contact you with an interview date. Then you will have an interview with an officer from the investor visa unit. Those interviews generally include detailed questions about the visa applicant’s qualifications. Lawyers are not permitted to attend these interviews, but we prepare our clients for the interview. It can take the Consulate up to four weeks after your interview to make a decision about whether your visa will be granted, though typically the decisions are made much more quickly.

The location of your interview will depend on where your residence is in Australia:

Your Residence	U.S. Consulate That Will Process Your E-2 Application
Australian Capital Territory	U.S. Consulate in Sydney
New South Wales	U.S. Consulate in Sydney
Norfolk Island	U.S. Consulate in Sydney
Queensland	U.S. Consulate in Sydney
Northern Territory	U.S. Consulate in Melbourne
South Australia	U.S. Consulate in Melbourne
Tasmania	U.S. Consulate in Melbourne
Victoria	U.S. Consulate in Melbourne
Western Australia	U.S. Consulate in Perth

For option 2, we submit the application package to the appropriate USCIS office in the U.S. Of note, the processing time for USCIS to make a decision on your application is typically 2 to 3 months and the employee cannot start working until the application is approved. And this is simply a “change of status” and would require that you visit a U.S. Consulate abroad the next time you leave the US to have the E-2 interview and receive the actual E-2 visa in your passport. So, in many circumstances, it makes the most sense to simply apply to the US Consulate in the first instance.

How Long is the E-2 Visa Valid?

The length of the visa can be any amount of time up to 4 years, and you can apply for renewals indefinitely. The US consular officer or USCIS adjudicator has discretion to award the visa for a shorter amount of time and will do so if they think the employee is only needed in the US for a shorter period of time (i.e. enough time for them to train a US worker). This is one of the reasons that it is very important to communicate why this employee is unique and needed by the company.

Can My Spouse Accompany Me and Work in the USA?

Yes. Unlike with other visa types, the spouse of an E-2 visa holder may accompany the E-2 visa holder and apply for an Employment Authorization Document that allows them to work anywhere in the U.S. Your spouse is eligible for this benefit even if they are not an Australian national.

For a free assessment of whether you qualify for an E-2 visa, please e-mail us or call our office (1-312-803-0360).