E-3 Visas Available Now

The U.S. Department of State (DOS) issued a Final Rule effective September 2, 2005 in the Federal Register. The category has requirements with respect to the education of the beneficiary and the job duties to be performed which mirror the H1B requirements. It thus will be helpful in some situations where the H1B otherwise would be the logical category.

E-3 Requirements:

The new E-3 visa classification is limited to 10,500 Australian nationals annually. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a "specialty occupation". This term is used and defined in the Immigration and Nationality Act in the same context as the H1B visa program, and will be interpreted in accordance with the criteria used for H1Bs. To be eligible, the Australian citizen must possess a bachelor's degree or higher (or its equivalent) AND the specialty occupation must require the theoretical and practical application of a body of specialized knowledge.

The E-3 beneficiary will be able to be accompanied by her or his spouse and child/ren (under 21) when entering the United States. The spouse and child/ren do not need to be Australian nationals. Only the principal foreign national must meet this requirement. In addition, the spouse is eligible to apply for work authorization. This is a significant benefit, not available to many nonimmigrant, dependent spouses. This is an advantage over the H1B, as a dependent H-4 spouse cannot obtain permission to work while in H-4 status. The work performed by the spouse of an E-3 does not have to meet any particular requirements. Additionally, the spouse and child/ren are not counted against the 10,500 annual limit.

E-3 Procedures and Required Documents:

There is no E-3 or H1B-type of petition that needs to be filed with the USCIS for an E-3. The application for the E-3 visa is made at the consulate, similar to the B-1/B-2 or F-1 visa applications that are allowed to be made directly at the consulate. However, the individual should also be prepared to present proof of eligibility for the E-3 category. The U.S. Department of State has issued a list of documents that will be required to establish eligibility for E-3 visa issuance:

*It is necessary to have a U.S. Department of Labor (DOL) certified Labor Condition Application (LCA). The LCA is a form used in connection with H1B cases that reflects the job offer at the appropriate prevailing wage rate. For the time being, the DOL advises that they will accept the Form ETA-9035, used for H1Bs, for the E-3s. This form must be mailed, not approved online, and must have a date after September 2, 2005. The DOL requires that the LCA bear the notation "E-3 -Australia- to be processed" at the top of each page.

*The application must also include proof of academic/other qualifying credentials, such as certified copy of U.S. baccalaureate or higher degree; a certified copy of a foreign equivalent degree, with any necessary translation and evidence of equivalency; or evidence that the applicant possesses education and experience that is equivalent to a U.S. degree.

*There must be proof the individual holds any required license or other professional permission to practice the occupation in the state where s/he intends to work. In some cases, it will be sufficient to show that the applicant will obtain the license within a reasonable time after admission.

*A letter from the employer or other documentation establishing that the applicant will be engaged in qualifying work in a specialty occupation and that the application will be paid the actual or prevailing wage required by INA Section 212(t)(1).

*There must be supporting evidence establishing that the applicant's stay in the U.S. will be temporary.

In conclusion, the ability to pursue an E-3 will be helpful to those Australian nationals and their prospective employers who missed the H1B cap. It will be preferable to the H1B for many, since there is no petition filing requirement with the USCIS prior to applying for the E-3 visa stamp at the consulate. This saves a substantial amount in filing fees. It may also save a great deal of time, and has the added benefit of not being counted against the H1B cap - often met at or before the start of the USCIS fiscal year.

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