DOL Proposes Rule on E-3 Labor Condition Applications
Posted Jan 19, 2007
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The U.S. Department of Labor (DOL) issued a proposed rule in the Federal Register on January 12, 2007 that addresses the procedure to obtain a Labor Condition Application (LCA) in E-3 cases. E-3s are similar to H1Bs, but E3s are available only for Australian citizens. This does not impact any aspect of the H1B LCA process.
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Only a PROPOSED Rule at this Time
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A proposed rule does not have an established effective date. It must first go through a comment period. Any member of the public can comment on the proposed rule during the comment period, which expires February 12, 2007. At that time the DOL must review the comments and address the issues raised as part of the final rule making. The Office of Management and Budget (OMB) will also review the final rule before it is published. Therefore, it could be a few months or more before a final rule is in place. Until the final rule is published, the DOL will continue to process E-3 LCAs pursuant to the July 19, 2005 Notice in the Federal Register. The DOL's Notice was reported in our July 22, 2005 MurthyBulletin article, DOS E-3 Regulations Being Finalized - DOL Issues Notice, available on MurthyDotCom.
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Like H1B1 - Except for E-3's Two-Year Validity
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The E-3 LCA process essentially will be the same as the H1B1 process for nationals of Chile and Singapore. This means that, while the universal attestations of the standard H1B application process apply, the H1B dependent and H1B violator attestations do not apply to the E-3 process. Universal and H1B dependent / willful violator attestations were addressed in our January 7, 2001 MurthyBulletin article, Updated on the New LCA Form for H1Bs, also available on MurthyDotCom.
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Unlike H1Bs and H1B1s that are valid for up to three years at a time, the DOL will only certify an E-3 LCA for up to two years. The DOL has made this decision because the U.S. Department of State (DOS) will generally only issue a visa for up to two years for an E-3 applicant, and the U.S. Citizenship and Immigration Services (USCIS) will only approve a change or extension of status for up to two years. The DOL's two-year limitation is in conformity with the other two agencies and may avoid confusion for E-3s.
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So Far, Rate of Use of the E-3 Program is Low
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The DOL indicated in its comments on the proposed rule that, based on the fiscal year (FY) 2005 use of the E-3 program, the agency expects to receive only around 833 E-3 LCAs this fiscal year. There is a cap of 10,500 new E-3s per year, which means that the program is currently being underutilized. It is not clear whether this is because only Australian citizens are currently included under the program and few Australian nationals are seeking initial entry, or because employers are unfamiliar or reluctant to use the program. Whether the lack of a current E-3 LCA rule plays any part in the underutilization is also unclear. Employers are reminded of this option for Australian professionals who otherwise might use an H1B or another category. This can be particularly valuable if, as we expect, the H1B cap is met quickly this FY under the 2008 H1B annual quota.