The New E3 Visa for Nationals of Australia

On May 11, 2005, President Bush signed into law the Emergency Supplemental Appropriations Package (H.R. 1268). Part of the legislation contained several immigration related provisions. One of the provisions enacted by Congress created a new work visa category for Australians that in many respects will make it one of the most attractive visas in US immigration law. The new law will largely take Australians out of the H-1B quota and offer them a visa that is similar, but more flexible than the H-1B. It also incorporates some of the elements of an E treaty visa and functions as a hybrid visa that should be highly useful to Australian nationals seeking work in the US.

What is the new E-3 visa?

Pursuant to the Immigration and Nationality Act (INA) a treaty trader is an investor or busi¬ness persons who is entitled to enter the United States under a treaty of commerce and navigation between the United States and the foreign state of which he is a national. Individuals entering the United States under this category are allowed to carry on international trade (via an E-1 visa) or to develop and direct a business in which they have invested a substantial amount of capital (via an E-2 visa). Admission under either E subcategory allows the entrepreneur to work at, direct, and manage an enterprise in the United States. Section 501 of H.R. 1268 amends INA by adding a new category of E treaty visa. This amendment creates a new INA Section, Section 101(a)(15)(E)(iii), which allows for the admission of an alien who is a national of the Commonwealth of Australia, and who is entering to perform services in a "specialty occupation."

What is a specialty occupation?

The term "specialty occupation" means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation in the United States. The definition is the same as the Immigration and Nationality Act definition of an H-1B "specialty occupation."

What is required of petitioning employers?

The petitioning employer will be required to file a Labor Condition Application (LCA) with the Secretary of Labor as required under Section 212(t)(1) of the INA. The process for filing the LCA should be similar to the process currently used with H-1Bs. Employers must also make the same attestations that they make for H-1B petitions including those regarding paying the prevailing and actual wages, not breaking up strikes, maintaining public access files, etc.

Is there a limit on the number of E-3 visas that will be issued?

The number of E-3 visas that will be issued will be limited to 10,500 per fiscal year. The spouse and children of the E-3 are allowed to accompany or follow to join the principal, and such spouses and children will not count against the 10,500 cap.

What are the time limits on E-3s?

The E status is open-ended and may be extended in two-year increments indefinitely

Can spouses of E-3s work?

Unlike H-4s, spouses of E visa holders are entitled to work authorization.

Can I convert from H-1B to E-3 status?

The statute does not bar this and it should be possible to change from H-1B to E-3 status.

When can I file for an E-3?.

In theory, applications can be submitted immediately as implementing regulations are not required. In practice, USCIS may not adjudicate these cases until they have at least established guidelines.

A person might also simply be able to apply for an E-3 at a consulate and bypass USCIS. The applicant would need to present an LCA and the other documents required above, but USCIS should not have to approve it in advance. This would allow E-3 applicants to secure visas within days of applying and be in the US quickly.

However, we have to wait until the USCIS and Department of State issue more guidance on this.

Is the E-3 a dual intent visa?

E-3 visas are not dual intent visas in the sense of H-1B visas and L-1visas. However, they do not have a foreign residence requirement. Applicants need to attest that they intend to depart when their status terminates. A statement is usually enough unless they have clear intentions showing the opposite.

Written By:Daniel B On May 17, 2005 08:36 PM

What does "spouses of E visa holders are entitled to work authorization". How is that different from a H4 visa holder getting work auth and applying for a visa change from H4 to H1B?

Written By:Meetesh Patel On May 19, 2005 08:02 PM

Thank you for your question. The difference between the H-4 visa situation that you describe in your question ad the work authorization for spouses of E3 visa holders is that the E3 visa holder's spouse does not have to change his/her status (i.e., from H-4 to H-1) to obation work authorization. The spouse of a E3 visa holder can apply for an employment authorization documents (EAD) by filing a form I-765 with the USCIS.

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