United States: Congress Created New Visa Category for Australian Professionals

On May 11, 2005, President Bush signed into law the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005 (Pub. L. Number 109-13). The Act contains a number of important immigration-related provisions, including a new E-3 nonimmigrant visa category for certain Australian professionals who will perform services in a "specialty occupation."

The term "specialty occupation" is defined in the same manner as it is for H-1B professionals – i.e., the position must require the theoretical or practical application of a body of specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent. Examples of specialty occupations include business specialties such as management and human resources, accounting, law, engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, and biotechnology. E-3 visa holders are permitted to work for any U.S. employer; unlike other foreign nationals in E classification, Australian nationals in E-3 status are not required to work for an employer that is majority- owned by citizens of their home country.

Up to 10,500 E-3 visas will be available to Australian professionals each fiscal year; spouses and dependent children of E-3 visa holders are exempted from the annual limitation. The annual 10,500 limitation is completely separate from the annual 65,000 limitation on H-1B professionals and the 20,000 H-1B visa numbers available to foreign nationals who have earned Master’s or higher degrees from U.S. universities.

In order to obtain the E-3 visa, the foreign national must apply directly at a U.S. consulate abroad. Though prior approval from U.S. Citizenship and Immigration Services is not required, the foreign national’s prospective employer will be required to first obtain approval of a Labor Condition Application (LCA) from the U.S. Department of Labor. Once the E-3 visa is obtained, visa holders and their dependents will be admitted for periods of up to two years; the visa is renewable for an indefinite number of two-year extensions. Though the Appropriations Act does not make specific provision for spousal employment, it appears that E-3 spouses will be permitted to apply for employment authorization, since the provisions that permit spousal employment authorization apply equally to all visas in the E category. Note, however, that employment authorization is not available to E-3 children.

Though the Act does not specify an effective date for the E-3 provisions, it is reported that the Department of State’s Visa Office (VO) is actively working to finalize implementation of the new E-3 visa for Australian nationals performing services in a specialty occupation. Draft regulations are undergoing internal review by other interested agencies and the Department of State is in the process of seeking assurances from the Australian government that American citizens will receive reciprocal visa treatment. The Visa Office indicated that implementing regulations should be ready for public notice in several months.

For further information, please contact our Partner David Hirson or Associate Attorney Lisa Jobe.

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