September 6, 2005 - The Department of State published regulations for the newly created E-3 visa category, allowing applications for visas for Australian professionals to proceed. As noted in our news item on May 11, and update on July 8, the Emergency Supplemental Appropriations bill created a new E-3 visa category for Australian professionals working in the U.S., subject to an annual limit of 10,500 per year.

The E-3 visa program mirrors the Singapore and Chile H-1B free trade visas that were created last year, but benefits from a 10,500 cap separate from the H-1B cap. The regulation establishes the following requirements for an E-3 visa:

1. The E-3 applicant must be an Australian national.
2. The position offered by the U.S. employer must meet the same "specialty occupation" requirements as established by the H-1B program. Therefore, this category will only apply to professional level positions (typically requiring a Bachelor's degree or higher).
3. The E-3 applicant must present evidence of academic or other qualifying credentials for the specialty occupation to the consular officer.
4. Prior to filing, the employer will need to secure wage and working condition approval from the Department of Labor using the Labor Condition Application process. The original Labor Condition Application must be submitted to the Consular officer as part of the application package. Certified copies are permitted by discretion.
5. The employer must detail in writing the job offer, wage and specialty occupation requirements.
6. Spouses and children of E-3 nonimmigrants are eligible for E-3 dependent visas. Dependents can be any nationality, i.e. they do not need to posses Australian citizenship. E-3 spouses are eligible to apply for E spousal work authorization once in the U.S. under the same process established for spouses of E-1/2 employees. The spousal work authorization is not limited to a specialty occupation or a specific employer. E-3 visas issued to dependents are not counted towards the annual 10,500 allocation.
7. The E-3 category is exempt from the six year H-1B time limit and can be renewed indefinitely. However, E-3 visas require "nonimmigrant intent" meaning that the visa holder must demonstrate an intention to depart from the United States upon the termination of the E-3 status. It is therefore possible that E-3 status might be rejected if the applicant has indicated an intention to immigrate to the United States.

BAL Comment: The Department of State's long awaited E-3 regulations allow for the rapid processing of E-3 applications at U.S. consulates abroad with appropriate documentation. However, there will still be some delay as Department of Labor regulations issued on July 19 require that the Labor Condition Applications be filed in hardcopy with their National Office, as opposed to using the online approval system that that provides for instant certification. The process will eventually be upgraded to online processing. The speed of visa issuance will also be tempered, and largely controlled by visa application backlogs at US consulates. (For estimated backlogs at US consulates, please see http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php.)

Please note that the Department of State regulations only set forth the procedure for applying for an E-3 visa abroad. They do not establish procedures for changing status to E-3 for individuals already in the United States in another lawful status, such as H-1B. Separate U.S. Citizenship and Immigration Service regulations are required for this process, and are expected in the coming months.

BAL looks forward to assisting employers with filing E-3 applications and welcomes interested client inquires.