DOS Issues E-3 Regulation : Australians Only
Posted Sep 09, 2005
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The U.S. Department of State (DOS) issued a Final Rule in the Federal Register that establishes procedures for Australians applying for an E-3 visa. This rule became effective September 2, 2005, the date of its publication. The E-3 is a category limited to 10,500 Australian nationals per year. This category was explained in our July 22, 2005 MurthyBulletin article, DOS E-3 Regulations Being Finalized - DOL Issues Notice. 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.
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E-3 for "Specialty Occupation"
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The E-3 is for Australian nationals whose services are sought in a "specialty occupation." This term is used and defined in the Immigration and Nationality Act in connection with H1Bs and will be interpreted in accordance with the criteria used for H1Bs. In short, a specialty occupation is one that requires the application of a body of specialized knowledge and the attainment of a bachelor's degree or higher (or the equivalent) in the specialty as an entry level requirement for the position. Essentially, it is for jobs that cannot be performed without a bachelor's degree or above (or its equivalent) in a specific field of study or a narrow range of fields of study.
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No Petition Filing Required with the USCIS
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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. It is necessary to have a U.S. Department of Labor (DOL) certified Labor Condition Application (LCA). This should not be confused with the labor certification required for a green card. 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. The instructions regarding notations that should be made on the Form can be found in the July 22, 2005 MurthyBulletin article, referenced above.
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The individual should also be prepared to present proof of eligibility for the E-3 category. The regulation does not specify the exact proof required. In order to show that one would meet the requirements, however, the proof would be similar to an H1B, absent the need for any petition. That is, it would seem that a successful application should substantiate the nature of the job and sponsor, as well as the applicant's qualifications.
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Spouses / Children of E-3 Beneficiaries
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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. 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.
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Conclusion
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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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