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The Real Story Behind The New E-3 Visa

by Gary Endelman

Move over Woodward and Bernstein. There are two new super sleuths in town and their names are Stanley Mailman and Steve Yale-Loehr. Their superb and stunningly insightful column on the Real ID Act in the June 27th issue of The New York Law Journal gives us the real scoop behind the new E-3 visa for Australians and points out how foreign trading partners are now demanding immigration concessions as the price of doing business with Uncle Sam. Dominance in the global economy will depend, in no small measure, on the ability of American companies to gain access to emerging foreign markets, such as India and China, who, in turn, may well demand a liberalization on immigration restrictions that restrict the ability of their citizens to work in the United States. In a "flat world", to borrow Thomas Friedman's felicitous phrase, immigration is no longer a problem to be controlled, but an asset to be maximized, and America's ability to marry its immigration policies with its commercial objectives will go far to determine the ultimate fate of both.

Section 501 of the Real ID Act of 2005, P.L. 109-13, creates an entirely new visa just for Australia, the E-3 visa. Interested readers who want a comprehensive but literate treatment of this visa should spend a few minutes perusing Greg Siskind's masterful treatment of the subject found in a special Real ID Act Issue of Bender's Immigration Bulletin (June 15, 2005). Unlike other E visas, the E-3 is just for Aussies, none others need apply. They have to be H-1B eligible in the sense of having a relevant college or university degree to perform professional services in a specialty occupation involving the theoretical and practical application of a body of highly specialized knowledge. As with the H-1B, the E-3 also requires Department of Labor approval of a labor condition application, thus ensuring, in theory, payment of a prevailing wage and requiring creation and maintenance of public access files open to public inspection by virtually any interested party on 24-hour notice. In practice, it is hard to avoid the conclusion that, seen from this vantage point, the E-3 is a nifty end run around the H-1B cap. While there are only 10.500 of these babies in any fiscal year, the practical effect is to ensure a steady stream of Australian expertise that will come in quota-free.

Beyond that, much as the H-1B1 visas created by the Singapore and Chile Free Trade Agreements, or the Blanket L program so vital to both Wall Street and Main Street, the E-3 can be applied for directly at a US Consulate so long as an approved LCA was firmly in hand, thus enabling the visa applicant to be hard at work soon after visa application is made. Unlike other E visa categories, the E-3 is not limited to Australian companies in the USA! Even an employer that is not mostly Australian owned gets to play. While it is true that E-3 visa holders will not be shielded from the presumption of immigrant intent that their H-1B cousins enjoy, in practice an expression of willingness to depart when E visa status expires, something that may not happen for years to come, normally should suffice to alleviate any 214(b) concerns. Remember, as Greg Siskind aptly points out, that E visa holders do not have to maintain a non-abandoned foreign residence abroad. 9 F.A.M. Sec. 41.51, N.15. This is dual intent in all but name. There is no need to file anything with USCIS and no need to pay the civil fines normally associated with an H-1B petition, such as the $1500 "training fee" for larger employers; the $500 "anti-fraud" assessment or the $1000 "premium processing" levy. Unlike the H-4 spouse, the E-3 spouse can apply for employment authorization, a feature that will encourage dual-career professional couples to come here. The E-3 is really a blanket H petition with the extra cherry of spousal employment wholly outside USCIS control and represents the continuation of a trend that moves key visa decisions away from CIS control into the foreign relations arena.

How did the E-3 come about? Why is Australia so favored? Our expert gumshoes, Messrs. Mailman and Yale-Loehr, know right where to look. They zero in on Congressman James Sensenbrenner's remarks at a Canberra press conference held at Parliament House on May 31st to celebrate the visa's birthday. See http://canberra.usembassy.gov/sensenbrenner%20Q&A.htm. These remarks explicitly link the creation of the E-3 with the recently concluded US-Australia Free Trade Agreement:

When America implemented the WTO accession, there were immigration provisions that were contained within that legislation, and it is my feeling that mixing immigration and trade is not the proper thing to do. There are two separate issues. During the negotiations with the Free Trade Agreement, the Australian government made a specific request that the WTO precedent be followed and that the E-3 visas be incorporated in the Free Trade Agreement. And I'm opposed to that and all of the members of my committee are opposed to this...But I did tell former Ambassador Thawley when he was on post in Washington that I would see what could be done to incorporate the request of the Australian Government into separate legislation that dealt with immigration...
As Congressman Sensenbrenner made clear, Congress, not the President, has the constitutional authority to make immigration policy. In that sense, the E-3 is clearly a child of Capitol Hill, unlike the H-1B1 which was imposed on a resentful legislature as part of a larger trade package agreed to by the President under his fast track authority which could no be amended in the course of Senate consideration. Following the Singapore and Chile free trade pacts, Congress put the President on notice that there were to be no similar such requests in the future. Chairman Sensenbrenner also took pains to caution that Congress would not necessarily extend the E-3 concept to trade negotiations with Third World countries: "I am concerned that when we are dealing with free trade agreements with Third World countries like Central America and Caribbean Islands...that is an entirely different mix of immigration questions than dealing with a developed country like Australia." http://canberra.usembassy.gov/sensenbrenner%20Q&A.htm.

The E-3 was not an act of American largesse, but the product of strong and sustained lobbying by a determined ally whose continued military participation in Iraq and Afghanistan was devoutly wished by the Bush Administration. Though not so blatant as to be an explicit quid pro quo, it is perhaps more than coincidental that recently re-elected Australian Prime Minister John Howard will see President Bush this summer. Perhaps the E-3 might come up. The Australian press reminded its readers that "the visa breakthrough follows months of negotiations by officials who have pushed to give degree-qualified Australian workers, such as accountants and lawyers, easier access to the tightly regulated North American labour market." Katharine Murphy & Geoff Elliott, "US To Let In More Aussie Workers", The Australian (May 12, 2005). The American Australian Association's media advisory noted that support for the E-3 visa was "consistent with the Association's input into the Free Trade Agreement negotiations where the Association worked with the Australian Embassy to press for improved visa access for professional employees to come to the United States." The Hon. Mark Vaile, Australian Federal Minister for Trade, candidly admitted that the E-3 vindicated the strategic decision by Australian negotiators not to press for inclusion of this visa option into the body of the free trade agreement itself. This was payback:

It's a significant breakthrough; it is something that we were pursuing as part of the US free trade agreement negotiations. At the time, it was an issue of sensitivity in the United States and we set it to one side for continuing work. Twelve months down the track we get very positive news for Australian business that they will now be able to enhance their opportunities and capitalize on opportunities that are being created through the United States free trade agreement... we've been working through our post in Washington after we concluded the FTA negotiations... I maintained our level of interest in prosecuting the case of Australia with USTR Bob Zoellick ...We left it on the basis that it was still open, that it wasn't closed off completely. We accepted their undertakings that they would continue to pursue it with Congress. Since then, our post, particularly led by Ambassador Michael Thawley, have maintained the pressure and the level of interest in the Congress to see this through. http://www.trademinister.gov.au/transcripts/2005/050511_cba.html.
Andrew Stoler, the Executive Director of the University of Adelaide's Institute for International Business, Economics and Law, was even more explicit:
"This was a clever move by the Australian negotiators in Washington, a really classy performance. Australians are now getting very special access to the US market." Stoler, a former deputy director of the World Trade Organization (WTO) praised the E-3 as proof that the Australian- United States FTA was a "living agreement." http://www.austrade.gov.au/corporate/layout
The nexus between trade and immigration is neither new nor novel. It most certainly predated the E-3, which is the latest but hardly the last example of this firm bond. The TN program, for example, created by the North American Free Trade Agreement allows an unlimited number of Canadian and Mexican professionals to work in the United States; while temporary in the sense that it must be renewed annually, in theory, the TN can go on forever, while the H-1B or L-1 visas, explicitly blessed by the tender mercies of dual intent, expire after much shorter shelf lives. There is neither cap on the number of business visitors nor corporate transfers to the United States, and any attempt to impose one might run afoul of our commitments to the World Trade Organization. http://www.cis.org/articles/2004/jessicaoped041304.html. Canada may file a complaint with the WTO on the grounds that US requirement for foreign nurses to be fluent in English is an unreasonable trade barrier aimed at excluding French speaking nurses from Quebec. Id. at pg. 2.

Perhaps the prime example of the potential conflict between freedom of international trade and immigration restriction comes not surprisingly in Indian charges that the US violated the WTO when it lowered the H-1B cap from 195,000 to the present 65,000. According to authoritative sources, "India is totally disappointed with the United States at its revised offer to open services sectors for foreign competition as Washington gave a short shrift to New Delhi's repeated requests to liberalize cross-border movement in medical services and relax conditions for flow of software professionals." http://www.deccanherald.com/deccanherald/jun262005/business193892005625.asp. "The US has a lot of stake in the current Doha round of global trade talks. We want key trading partners, like India, to open up their insurance and banking sectors to American service providers and to make it possible for US companies to own a heftier slice of joint ventures." http://accts-talks.com/july_02.htm.

Recently, American negotiators tabled a revised offer in ongoing WTO that would fix in stone current market share that foreign financial service companies have in the US domestic market while maximizing opportunities for American companies to penetrate foreign markets in key areas such as telecommunications, transportation and computer services. In turn, India sought WTO protection against any future US attempts to ban outsourcing and politely, but firmly, served notice that more short-term business visas would be the price of Indian agreement to any new global trade pact. http://www.deccanherald.com/deccanherald/jun32005/business17243200562.asp.
"India is calling on the US to massively increase the number of working visas available to foreign workers, including Indians. Currently the US grants 65,000 H1B visas a year, but the Indian government wants to increase this to 195,000." The Indian government has made a formal request to the World Trade Organization. It originally asked for unlimited visas for technical staff on temporary contracts. The Indian government also called for an end to restrictions on medical services." http://www.theregister.co.uk/2005/06/27/india_wants_more_visas/

The US wants easier and greater access for its industries to sell their wares in India? Fine, give us more H-B visas, say about 195,000, reply our Indian friends. According to the Economic Times of India, "In the ongoing WTO talks, India has made enhancement of the H-1B quota as a key bargaining chip for offering concessions in market access for industrial products and farm goods, highly-placed government officials said." http://economictimes.indiatimes.com/articleshow/1151031.cms. If Australian lobbying produced 10,500 E-3 visas, what can a behemoth like India get for itself?

There is a risk in linking immigration policy with global trade and it is this. Those Americans uneasy with what they perceive to be a gradual erosion of national sovereignty or who cannot compete in the global economy, who see their jobs leave for India or other low wage markets, knowing that they will never return, may turn not only against globalization but, in the bitterness of their betrayal, against the very idea of immigration itself. Advocates of immigration run the risk of being viewed by those on the wrong side of the digital divide as a selfish and corrupt elite out for themselves and willing to sell out their country for the almighty dollar. For this reason, free trade champions must couple their advocacy with a genuine concern for those who have fallen behind and press for laws that promote education, pension reform, health care and retraining as a tangible renewal of commitment to community and the social compact. An enlightened immigration policy can only arise from a compassionate society. A first step would be for Congress to revise the Trade Adjustment Assistance Act so that IT workers whose jobs are now done in Bangalore are extended a hand up not a hand out by the US government in a time of painful transition. People out of work should not have to litigate to retain their dignity. The ancient Chinese proverb warns of the risk to wish one lived in interesting times. We surely do. Hang on for the ride.


About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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