The new E-3 visa classification is limited to 10,500 Australian nationals annually. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a "specialty occupation". This term is used and defined in the Immigration and Nationality Act in the same context as the H1B visa program, and will be interpreted in accordance with the criteria used for H1Bs. To be eligible, the Australian citizen must possess a bachelor's degree or higher (or its equivalent) AND the specialty occupation must require the theoretical and practical application of a body of specialized knowledge.

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. In addition, 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.

E-3 Procedures and Required Documents:

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. However, the individual should also be prepared to present proof of eligibility for the E-3 category. The U.S. Department of State has issued a list of documents that will be required to establish eligibility for E-3 visa issuance:

*It is necessary to have a U.S. Department of Labor (DOL) certified Labor Condition Application (LCA). 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. This form must be mailed, not approved online, and must have a date after September 2, 2005. The DOL requires that the LCA bear the notation "E-3 -Australia- to be processed" at the top of each page.

*The application must also include proof of academic/other qualifying credentials, such as certified copy of 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.

*There must be proof the individual holds any required license or other professional permission to practice the occupation in the state where s/he intends to work. In some cases, it will be sufficient to show that the applicant will obtain the license within a reasonable time after admission.

*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).

*There must be supporting evidence establishing that the applicant's stay in the U.S. will be temporary.

In conclusion, 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.

As more updates become available on this issue, we will continue to post them on this site.

Pursuant to the Immigration and Nationality Act (INA) a treaty trader is an investor or business persons who is entitled to enter the United States under a treaty of commerce and navigation between the United States and the foreign state of which he is a national. Individuals entering the United States under this category are allowed to carry on international trade (via an E-1 visa) or to develop and direct a business in which they have invested a substantial amount of capital (via an E-2 visa). Admission under either E subcategory allows the entrepreneur to work at, direct, and manage an enterprise in the United States. Section 501 of H.R. 1268 amends INA by adding a new category of E treaty visa. This amendment 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 (LCA) with the Secretary of Labor as required under Section 212(t)(1) of the INA. The process for filing the LCA should be similar to the process currently used with H-1Bs. Employers must also make the same attestations that they make for H-1B petitions 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?

The E status is open-ended and may be extended in two-year increments 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.

A person might also simply be able to 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 allow E-3 applicants to secure visas within days of applying and be in the US quickly.

However, we have to wait until the USCIS and Department of State issue more guidance on this.

Is the E-3 a dual intent visa?

E-3 visas are not dual intent visas in the sense of H-1B visas and L-1visas. However, 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.