September 7, 2005

New E-3 Visa for Australians

The State Department implemented expansion of the E visa category to include a new "E-3" visa for Australians who will perform services in the U.S. in a specialty occupation. Effective September 2, 2005, the new E-3 visa category is limited to 10,500 E-3 visas annually and is only available to Australians and their immediate dependents (spouses and children). The dependents do not need to possess Australian nationality nor are they counted against the numerical cap. Spouses will be eligible for submitting an application for work authorization once they enter the U.S. in valid E-3 status.

To qualify for an E-3, visa, applicants must provide evidence that the position to be assumed in the U.S. qualifies for a "specialty occupation". In determining what a specialty occupation is, Consular Officers will apply the same statutory language as defined in the H-1B regulations. Under the H-1B regulations, a specialty occupation requires "theoretical and practical application of a body of highly specialized knowledge," and the "attainment of a bachelor's degree or higher in a specific specialty, or its equivalent."

Applications will be made directly to the Consular Officer at the U.S. Consulate or Embassy outside of the U.S. At this time, there is no special E-3 application form, however, applicants must submit the standard visa application forms (Forms DS-156 and DS-157); an offer letter from the employer in the U.S. verifying the applicant will assume a specialty occupation upon entry into the U.S.; evidence of academic or other qualifying credentials; and evidence that the applicant will be paid the prevailing wage, in the form of an original, or certified copy, of the Labor Condition Application ("LCA") which has been certified by the Department of Labor. The LCA contains attestations by the sponsoring employer related to wages and working conditions.

Prior to the ruling, the E visa category was based on particular treaties between the U.S. and certain foreign countries that are intended to encourage trade and investment. It was available only for citizens of those particular countries which have entered into a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent with the United States. The new ruling reorganizes and clarifies the regulatory language for both the E-1 and E-2 visa. E-1 visas are available for personnel of companies engaged in trade with the U.S., known as "treaty investors." E-2 visas are available for personnel of companies engaged in business in the U.S. which represents a substantial investment in the U.S., known as "treaty investors." As with E-1 and E-2 visa holders, E-3 applicants must also intend to depart from the United States upon the termination of their E status.