E-3s Visa Issuance Expected for Australians in August 2005 Posted Jul 08, 2005 ©MurthyDotCom The U.S. Department of State (DOS) recently advised that the target start date for E-3 visa issuance for Australians is August 2005. This nonimmigrant category should not be confused with the Employment-Based Third Preference Immigrant category, often abbreviated as EB3. This information was released at the American Immigration Lawyers Association (AILA) annual Conference at the end of June 2005 in Salt Lake City, Utah. ©MurthyDotCom Background on E-3 Visas for Australians ©MurthyDotCom Legislation was enacted in May 2005, creating a new nonimmigrant category available only to Australian citizens. Known as the E-3, this category was covered in our May 13, 2005 MurthyBulletin article, Australians May be Eligible for New E Visa Status, available on MurthyDotCom. As of this writing, the E-3 visas are not yet available. The DOS must establish the procedures before issuing this new type of visa. ©MurthyDotCom Issues to be Resolved ©MurthyDotCom According to Stephen Fischel, Director of the Office of Legislation, Regulations and Advisory Assistance at the DOS Visa Office, this new category was the subject of an interagency meeting prior to the 2005 AILA Conference. Since the E-3 involves a Labor Condition Application (LCA), the U.S. Department of Labor (DOL) is involved, as well as the Department of Homeland Security (DHS), the DOS and perhaps other agencies that were not mentioned. Therefore, all involved agencies must be in agreement before E-3 visas can be issued at the consulates. Additionally, there are some reciprocity concerns with Australia that may need to be resolved. ©MurthyDotCom Mr. Fischel also said that there is a possibility other countries may be added to the E-3 program at a later, unspecified date. ©MurthyDotCom Consular Processing : Not Petition ©MurthyDotCom There will be no petition filed with the USCIS for this type of case, similar to the B-1, B-2, E-1, E-2, H-4, or R-1 nonimmigrant visas for which the person abroad may just acquire the visa from the consulate without having to obtain prior petition approval from the USCIS. Issuance of the E-3 visa will involve a decision by a consular officer based upon documentation provided to the consulate. Thus, before the process can begin, there must be extensive guidance to the consulates regarding the legal requirements, standards, and procedures. ©MurthyDotCom Specialty Occupation : H Similarities ©MurthyDotCom The E-3 category, once implemented, will be for Australian citizens seeking entry to the U.S. for work in specialty occupations. The term "specialty occupation" is the same term and concept used in H1B cases. One of the differences between the E-3 and the H1B is that the H1B has a specific dual-intent provision. This allows a person to obtain an H1B even if s/he has expressed an immigrant intent, including having a green card case in process. The E-3 does not have the benefit of this dual intent, which is limited to H1Bs and their dependents and L-1s and their dependents under statute. However, as Mr. Fischel pointed out, the E category does not specifically require that one have an unrelinquished domicile abroad. It calls for the least proof of ties to the home country, as the consular officer need only be satisfied that the individual has the intent to depart upon the termination of nonimmigrant status. Another difference that will appeal to many, is that E-3 spouses will be able to seek employment since they can apply for the EAD, similar to L-2 spouses. As regular MurthyDotCom and MurthyBulletin readers may recall, the spouses of H1Bs, who are categorized as H-4s, do not have this privilege. ©MurthyDotCom Wait and Watch MurthyDotCom! ©MurthyDotCom Until the DOS puts the procedures in place for the E-3 visas for Australians, these visas remain unavailable. Hopefully, processing for Australians in the E-3 classification will start in early August 2005 when all of the procedures are completed for their E-3 visa issuance. We at The Law Office of Sheela Murthy, P.C. will continue to follow the progress of this category and will post updates on MurthyDotCom when it becomes an option for Australians and, perhaps in due course, for other nationals, as well! © 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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