Shane_j

Hi everyone,

I am currently in the process of obtaining an e3 visa to work in the United States. I have an official job offer for a personal trainer position which utilizes my bachelors degree in exercise and sports science, and my employer and I are waiting to get confirmation back on my LCA which has been submitted. My first question is, will there be any issues at the visa interview (going in Melbourne) because some personal trainer jobs do not require a bachelors degree as a qualification. My job offer letter does say that the position I have been offered requires one though but I know some dont.

My second question is that, for tax purposes, my employer wants me to be a 1099 contracted employer rather than on a W2. I am still employed by the company and get paid an hourly wage which is above the prevailing wage, but I would be contracted and withhold my own tax. I do have a social security number from when I was previously on a J1 visa a few years ago.

Any help would be great because I don't want to fly all the way back only to have my visa denied.
Thanks

Noorah101

This doesn't sound right. If you are an employee of the company, on their payroll, you will receive a W2 statement. 1099 statements are for self-employed contract workers, who are not on the company payroll.

I don't know what the E-3 visa requires, whether it's OK to be a contract worker or not. But if the company is sponsoring your visa, then I would think you need to be on the company payroll and receive a W2.

Rene

Shane_j

So I checked with my employer and I will be an independent contractor and he will contract work out to me. So when I go for my interview I will have a contract with the company and that will be my job offer. Nowhere on any of the government websites does it say that I need to have a W2 type employment, just an official job offer.

Noorah101

I know I'm not the best person to say anything here, as I'm not that familiar with the E-3 visa.

Just keep in mind that you will be self-employed in the USA. You might want to research whether the E-3 visa allows self-employment. I know you have a "job offer", but it's not a job offer from a company that is going to really employ you. They will be hiring you as an independent contractor, and you will be your own employer.

So now the real question is....can a self-employed person obtain an E-3 visa?

Rene

scrubbedexpat099

Where is the Lawyer handling the case in all of this?

Why does the job you are doing require a degree?

E3 is similar to H1b and for that you need to be an employee, if it was open to the self employed then, I am sure that would be out there big time.

Michael

Being a contractor would likely cause refusal for several reasons. First as a contractor, you are self employed and not working for the sponsoring company. Contractors are usually only allowed when an individual is working for a consulting or outsourcing firm so they are not self employed but just contracted out to perform jobs.

Second, your income (including benefits and employer contributions) would have to be similar to others with similar job qualifications. As an independent contactor, you would have to pay for your own benefits including health insurance, holidays, vacations, employers contributions to social security and Medicare, purchase insurance similar to workman's compensation, not be covered be unemployment compensation (not available to people on E3 visas but employer still has to make contributions), and any other employment taxes that the government imposes on the business. Therefore, even if USCIS allowed contractors, they wouldn't likely put in the effort to try to determine what would be considered a similar salary for a contractor as compared to an employee.

ian-mstm

The E-3 visa doesn't work that way. You must be an employee of the company... the company doesn't get the option of that not being the case.

Ian

Shane_j

That's for your clarification, it was really helpful. So if I can talk with my employer and change to be an actual employee on the payroll (and therefore receive a w2) then I should be fine? As long as I have my completed LCA and job offer letter?

ian-mstm

Should be, yes... operative word: should.

Ian

lifehouse51

It's also my understanding that you have to be an employee of a company, not a contracted worker, while on E-3

I terms of the Bachelor's requirement, it is not an issue at the stage of LCA approval (Which is conducted by the dept of labor and they're more interested in you being paid the prevailing wage), but may be an issue when you go to a U.S. consulate for a visa interview.

The job title and job descriptions in the job offer letter should be convincing enough that a Bachelor's degree is needed. Simplying stating that a degree is needed won't fly in this case. "Personal Trainer" doesn't sound like a position that requires a degree, you should try to renegotiate the title.

Shane_j

I realize that some positions with the same title do not require a bachelors so as long as my job offer from my employer states that this particular position does and explain why, it was my understanding that it would be ok. That is what you are saying too correct? My wage I am being paid is well above the prevailing wage ($15,000 per year above) which will help prove that this is more than just an average personal trainer role right?

The USCIS website states that it can be considered a speciality position if "The employer normally requires a degree or its equivalent for the position" so that's what I am going off.

lifehouse51

I'm saying your title doesn't strike me as a position requiring a Bachelor's degree.

lifehouse51

Forgot to mention that during the visa interview, the consular officer probably won't have that much time to review your application, nor you will have much time to explain things. The burden of proof is on you and your employer to show that the job qualifies for E-3. You're not gonna have the luxury of spending hours explaining how certain personal trainer positions require degree and others don't, or how your personal trainer position is much different from other ones our there. You want to make everything as easy to understand for the consular officer as you can in a short amount of time.

scrubbedexpat099

Just from reading this thread my suspicion levels would be on high alert and I do not do this as a job.

To be more precise the Lawyer handling the case would front load the petition to address such issues.

23isthename

Hey Shane_j , just wondering how your visa process went? As I am in a similar situation at the moment.