Law Office of Bonnie Stern Wasser
—Bringing People Together—
New “E-3” Visa Available For Australians
By Bonnie Stern Wasser, Esq.
© 2005
The following is intended as general information and not legal advice. It is not meant to establish an attorney/client relationship.
On May 11, 2005, President Bush signed into law the “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror and Tsunami Relief” (P.L. 109-13) that included the Real ID Act of 2005 containing various immigration provisions. Among the more unusual items in the bill unrelated to defense, the war on terror or tsunami relief was the creation of a new “E-3” visa just for Australians. As of this writing, the Department of State (DOS) which administers the US Consulates abroad, has issued implementing regulations for the program effective September 2, 2005. US consulates abroad are beginning to add instructions to their websites.
While on the one hand wanting to treat trade and immigration as separate issues, House Representative F. James Sensenbrenner, Jr., Chairman of the House Judiciary Committee, stated to the Australian Parliament at the end of May that the E-3 visa provision was enacted separately in the Real ID Act to satisfy the request of the Australian government during the negotiations over the new US-Australia Free Trade Agreement. Reciprocal exchange visas were sought to facilitate trade between the two countries. According to Representative Sensenbrenner, when asked if similar provisions would be negotiated with other countries engaged in other trade agreements with the US, he indicated that developing countries that have high illegal or overstay rates would make similar immigration provisions unlikely.
Specifically, the E-3 visa is a hybrid between the already existing E-1/E-2 treaty-trader visa for Australian nationals working for Australian owned companies in the US in the capacity of manager, executive or with “essential skills”, and the H-1B program for “specialty workers,” i.e., persons with at least bachelors degrees in occupations requiring the “theoretical and practical application of a body of highly specialized knowledge.” While the E-3 category will be for Australian nationals, the US company need not be primarily Australian owned as in the E-1/E-2 visa context. The person seeking the visa will perform services in a specialty occupation and must have the qualifying education and/or work experience. Like the H-1B program, a certified labor condition application (LCA) from the US Department of Labor (DOL) attesting to certain wage and working conditions will be required. However, it appears that unlike the H-1B program, no petition will be required to be submitted to CIS first. Applicants will submit certified LCAs directly to the US Consulate with the visa application, thus avoiding the very expensive H-1B filing fees of $1500 for training of US workers, the $500 fee for anti-fraud efforts or the optional $1000 premium processing fee for expedited attention by CIS.
Similar to the H-1B program, there will be an annual cap of just 10,500 visas per year. However, only the principal workers will count toward the cap, not their spouses or minor children. Unlike the H-1B program, the spouses of E-3 visa holders will be able to obtain work permission, thus making the program enticing to dual-career couples. Unlike the H-1B program, which has a maximum 6-year limit, the E-3 visa will be renewable indefinitely. While H-1B visa holders may have dual intent to stay permanently or temporarily, the E-3 program will be like the E-1/E-2 program which does not require maintenance of a permanent home abroad, but a declared intention to leave the US when the purpose of the visa has been fulfilled or completed.
The LCA program administered by the DOL does carry with it significant liabilities and sponsoring companies will be subject to significant wage obligations, record-keeping requirements, maintenance and access to public inspection files, and DOL audit provisions. Therefore, while the E-3 visa appears to be extremely liberal in many ways, sponsoring companies need to be aware of their liabilities and obligations under the program.
Updated September 15, 2005
