The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, 119 Stat. 231 was signed into law by President Bush on May 11, 2005 allowing Australian Nationals an alternative to the H1B visa. Division B, Title V, Section 501 of the Immigration and Naturalization Act adds a new nonimmigrant visa classification for certain treaty aliens who are coming to the United States solely to perform services in a specialty occupation. The classification will be designated the “E-3 visa”.

The E-3 visa currently applies only to citizens of Australia as well as their spouses and children (who do not need to be citizens of Australia). E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a specialty occupation sponsored by a U.S. Employer. They must be qualified (through education, experience, or a professional license) to perform such services.  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. The E-3 visa may be extended in two-year increments indefinitely.  The applicant will have to demonstrate that he or she has a U.S. Employer sponsoring them and that they do not have the intent to reside permanently within America.

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) and specially notated for E-3 visa use. 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.

It is not necessary to file a petition with the Department of Homeland Security as a prerequisite to visa issuance. 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. This filing procedure could allow the E-3 candidate to be inside the U.S. and working within days.  As indicated above, 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.

Spouses of E-3 visa holders are permitted by INA 214(e)(6) to engage in employment in the United States , similar to the spouses of 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.

The E-3 applicant must be coming to America to fill a ‘specialty occupation’, that is, an occupation 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. The Department's regulations governing E-3 visas incorporate the definitions contained in section 214(i)(1) of the Immigration and Nationality Act (INA). 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.

“Specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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.”

Under USCIS regulations, for a job to be considered a specialty occupation, one or more of the following criteria must be met:

The visa applicant should have the following:

1. Full state licensure, if required for practice in the specialty field. For example: many pharmacists and all nurses are required to have a state license to practice, however, where the only bar to obtaining a license is the fact that the beneficiary lacks a social security card, USCIS should grant the petition for a one-year period. Finally, it must be understood that a license requirement does not necessarily prove that the position in question is a specialty occupation; 2. Completion of a U.S. bachelor’s or higher degree (or its foreign equivalent) in the specific specialty or a related field; or 3. Education, training, or experience in the specialty occupation equivalent to the completion of such degree.

The type and level of degree required for the specialty occupation is dependent on the particular specialty occupation. Some positions may require an advanced degree as a minimum entry requirement. For other occupations, such as entry level Computer Systems Analysts, a bachelor’s degree will suffice. If the applicant’s education has not been completed in the States, a foreign degree evaluation should be completed to determine whether the foreign degree is equivalent to a U.S. degree. These evaluations should be completed by accredited agencies and can be found quite easily on the internet.

Often times, there may be an assortment of related disciplines acceptable for entry into a given specialty. For example, a Computer Systems Analyst position may require a degree in computer science, engineering, math, or a related field.

An applicant may substitute prior work experience in a specialty occupation for part of, or in some instances, the entirety of the requisite education. However, work experience alone will not wholly substitute for a Master’s degree or higher. This experience must be in “progressively responsible positions relating to the specialty.” Evidence of qualifying experience, according to the House committee, can include “letters from peers and special honors recognition, or authorship of textbooks.” An applicant can also evidence this work experience through an evaluation conducted by a college or accredited agency. USCIS may also determine equivalency through application of the “three-for-one” rule, by which three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks.

Changing Status to E-3 (Within the U.S.)

Partial Excerpts From E-3 VISA - FINAL RULE, 22 CFR Part 41, RIN 1400-AC12, Public Notice 5181