The E-3 Visa Category
The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005, Public Law 109-13, 119 Stat. 231 was signed into law by the President on
May 11, 2005. Division B, Title V, Section 501 of the Act adds a new nonimmigrant visa
classification for certain treaty aliens who are coming to the United States solely to perform
services in a specialty occupation, which has been designated as the "E-3 visa."
The new E-3 visa classification currently applies only to nationals of Australia as well
as their spouses and children. E-3 principal nonimmigrant aliens must be coming to the United
States solely to perform services in a specialty occupation. The E-3 visa is similar to the H-1B
visa, although unlike in the case of the latter, it is not necessary to file a petition with the
United States Citizenship and Immigration Services (USCIS).
The E-3 visa classification is numerically limited, with a maximum of 10,500 visas
available annually. Spouses and children do not count against the numerical limitation nor are
they required to possess the nationality of the principal. A Labor Condition Application (LCA),
containing attestations by the sponsoring employer related to wages and working conditions, must
be filed with and approved by the Department of Labor (DOL). This is the same LCA that one files
prior to submitting an H-1B petition. But unlike the H-1B visa petition which is filed with the
USCIS, the E-3 visa application is presented directly to the consular officer with the original
or copy of the approved LCA. Procedures for the E-3 visa are similar to those established for
obtaining H-1B1 classification under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.
Also, unlike the H-1B visa, the E-3 visa does not allow the holder to possess “dual intent” and
requires the applicant to show evidence that his or her stay in the US will be temporary.
The definition of a “specialty occupation” under the E-3 visa is similar to the
definition of a “specialty occupation” under the H-1B visa. In general, a specialty occupation
is one that requires theoretical and practical application of a body of knowledge in professional
fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for
entry into the occupation in the United States. The recent State Department's regulations
governing E-3 visas incorporate the definitions contained in section 214(i)(1) of the Immigration
and Nationality Act (INA). In order to determine what constitutes a "specialty occupation,"
consular officers abroad will be guided by, and will apply, regulatory criteria already developed
by the Department of Homeland Security for the H-1B classification.
Section 214(e)(6) of the Immigration and Nationality Act permits the spouse of a
principal E nonimmigrant to engage in employment in the United States. As is the case for the
spouse of a principal E-1 and E-2 nonimmigrant, the spouse of a qualified E-3 nonimmigrant may,
upon admission to the United States, apply for an employment authorization document, which an
employer could use to verify the spouse's employment eligibility. Such spousal employment may be
in a position other than a specialty occupation.
The following useful information was recently posted on AILA Infonet regarding E-3 visas:
The Visa Office has informed AILA that the following documents will be required to
establish eligibility for E-3 visa issuance:
- an original or photocopy of a certified ETA 9035 Labor Condition Application form bearing a DOL certification date later than September 2, 2005 (MUST use the mail-in ETA 9035);
- evidence of academic or other qualifying credentials to establish the applicant’s eligibility for E-3 visa issuance, such as a certified copy of a U.S. baccalaureate or higher degree, a certified copy of a foreign equivalent degree, with any necessary translation and evidence of equivalency; or evidence that the applicant possesses education and experience that is equivalent to a U.S. degree;
- a letter from the employer or other documentation establishing that the applicant will be engaged in qualifying work in a specialty occupation and that the application will be paid the actual or prevailing wage required by INA Section 212(t)(1);
- evidence establishing that the applicant’s stay in the U.S. will be temporary. (See 9 FAM 41.51 N16.6);
- a certified copy of any required license or other official permission to practice the occupation in the state of intended employment, if necessary, or, if permitted evidence that the applicant will be obtaining the required license or permission within a reasonable time after admission;
- evidence of payment of the Machine Readable Visa fee.
DOL requires the filing of the ETA 9035 by mail – neither the FAX nor the ETA 9035E is
acceptable. 70 FR 41430, 41432, 41434, July 19, 2005. Please note that the DOL requires the LCA
to bear the notation “E-3 – Australia – to be processed” at the top of each page. The E-3 LCA is
submitted to:
United States Department of Labor
Employment and Training Administration
Division of Foreign Labor Certification
Temporary Programs – Room C4312
200 Constitution Avenue, N.W.
Washington, D.C. 20210
DOS further informs AILA that a post may require a visa applicant to submit an original
certified LCA in the event post suspects the veracity of the copy presented with the E-3 visa
application.
Updated guidance will be sent to posts by the end of the week, to be followed shortly by
a revision to be the FAM. Until then, should there be questions regarding the LCA, DOS suggests
attorneys and applicants asks post to seek an advisory opinion.
This article originally appeared on http://www.cyrusmehta.com
About The Author
Cyrus Mehta, a graduate of Cambridge University and Columbia Law School, practices
immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates,
P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and
recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association
of the Bar of the City of New York and former Chair of the Committee on Immigration and
Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
|
Attorneys
Stumble It! | 
Add to del.icio.us | 
Digg this!