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The New E-3 Visa for Australians – FAQsby Gregory Siskind
Congress has created a new work visa category for
Australians that in many respects will make it one of the most attractive visas
in US immigration law. The new law will largely take Australians out of the H-1B
quota (which has a long queue right now) and offer them a visa that is similar,
but more flexible than the H-1B. It also has some of the elements of an E treaty
visa and can be viewed as a hybrid that should be highly useful to Australian
nationals seeking work in the US. What is the new E-3 visa? Section 501 of the Real ID Act of 2005 has made a change to
the Immigration and Nationality Act to allow for a new category of E treaty
visa. This change creates a new INA Section, Section 101(a)(15)(E)(iii), which
allows for the admission of an alien who is a national of the Commonwealth of
Australia, and who is entering to perform services in a "specialty
occupation." What is a specialty occupation? The term "specialty occupation" means an
occupation that requires theoretical and practical application of a body of
highly specialized knowledge, and attainment of a bachelor's or higher
degree in the specific specialty (or its equivalent) as a minimum for entry into
the occupation in the United States. The definition is the same as the
Immigration and Nationality Act definition of an H-1B “specialty
occupation.” What is required of petitioning employers? The petitioning employer will be required to file a Labor
Condition Application with the Secretary of Labor as required under Section
212(t)(1). The process for this should be virtually identical to the process
currently used with H-1Bs. Employers must also file labor condition applications
like in H-1B cases and make the same attestations including those regarding
paying the prevailing and actual wages, not breaking up strikes, maintaining
public access files, etc. Is there a limit on the number of E-3 visas that will be
issued? The number of E-3 visas that will be issued will be limited
to 10,500 per fiscal year. The spouse and children of the E-3 are allowed to
accompany or follow to join the principal, and such spouses and children will
not count against the 10,500 cap. What are the time
limits on E-3s? E-3 I-94 time limits are the same as E-1 and E-2 visas (as
opposed to H-1Bs). More significant, however, is that they can be renewed
indefinitely. Can spouses of E-3s
work? Unlike H-4s, spouses of E visa holders are entitled to work
authorization. Can I convert from
H-1B to E-3 status? The statute does not bar this and it should be possible to
change from H-1B to E-3 status. When can I file for
an E-3? In theory, applications can be submitted immediately as
implementing regulations are not required. In practice, USCIS may not adjudicate
these cases until they have at least established guidelines. Interestingly, one might simply apply for an E-3 at a
consulate and bypass USCIS. The applicant would need to present an LCA and the
other documents required above, but USCIS should not have to approve it in
advance. This would mean that E-3 applicants can secure visas within days of
applying and be in the US quickly. We will have to wait and see what USCIS and DOS announce,
however. Is the E-3 a dual
intent visa? They are not dual intent in the sense of H-1Bs and L-1s,
but they do not have a foreign residence requirement. Applicants need to attest
that they intend to depart when their status terminates. A statement is usually
enough unless they have clear intentions showing the opposite. But there is case
law stating that the expression of a desire to remain in the US permanently as
opposed to intending to remain even if legally not permitted, is permissible on
an E visa. In other words, wanting to remain permanently is okay as long as one
is willing to leave if this is not permitted by law. E visa applicants also need not demonstrate that they are
coming for a limited period of time and they do not need to show a home in their
home country to which they plan to return. This would be impractical given the
fact that E visa holders can remain in the US for decades.
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