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New E-3 visa for Australians: DOS issues regulations
Published on: Tue, 06 Sep 2005 12:00:00 GMT
The U.S. Department of State recently published the regulations implementing the new E-3 visa for Australians. With the publication of the final rule, Australians are now able to apply for E-3 visas to work in the United States. The U.S. Citizenship and Immigration Services (USCIS) has not yet published its procedures for E-3 visa applications and thus, applicants who are within the United Status in any other nonimmigrant status must wait for the USCIS to issue its procedures before filing applications for change of status to E-3 visa.
Who qualifies for 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.
What is a Specialty Occupation?
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. 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.
What are the other requirements to qualify for E-3 visa?
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).
At the time of visa application, the visa applicant must present the consular officer with the original or copy of the approved LCA. However, if the applicant cannot provide the original, the consular officer, at his/her discretion, may accept a certified copy of the approval. The approved LCA represents DOL's certification that the employer has met the attestation requirements of the E-3 statute.
How to file Labor Condition Application?
VisaPro readers will recall that on July 29, 2005 (E-3 visa update: DOL issues guidance for filing of LCA) we had informed our readers of an interim guidance on filing of LCAs issued by the Department of Labor. In a notice published in the Federal Register DOL had suggested that employers seeking to sponsor workers under the E-3 category:
Use Form ETA 9035, Labor Condition Application for H-1B & H-1B1 Nonimmigrants, to request certification under the E-3 program.
Print "E-3--Australia--to be processed'' at the top of each page of the form. Please print legibly and use blue or black ink.
File the completed LCA with the Department of Labor's National Office
Does it require filing of a prior petition in US before visa issuance?
No petition to the Department of Homeland Security is necessary. Instead, in the case of an employee seeking a visa, the employee will present the necessary evidence for classification directly to the consular officer at the time of visa application. Such evidence will include the original or copy of the Labor Condition Application signed by the prospective employer and approved by the Department of Labor. 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.
Can spouse of E-3 nonimmigrant work in the US?
Yes. INA 214(e)(6) 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.
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