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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.
Work Authorization for Spouses of E-3 Visa Holders
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:
1. A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
2. The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
A U.S. bachelor’s or higher degree (or its foreign equivalent) should be held in the specific specialty or a related field. Furthermore, a general arts degree or a generic business administration degree without further specialization may be heavily scrutinized by the
Qualifying for the Specialty Occupation
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.
College or University Degree Requirement
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.
Work Experience in Lieu of Education
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.
Partial Excerpts From E-3 VISA - FINAL RULE, 22 CFR Part 41, RIN 1400-AC12, Public Notice 5181
We are citizens of India.My elder son aged 25 is Masters from Stanford University. My wife and I are
permanent residents of USA and we have applied for our son's Green card. My son's employer in California
has got him a H1B visa in 2004, but my son must leave USA and re-enter to validate his H1B Visa. He is now
planning to go to US Consulate in Toronto to get it stamped there. Our friends tell us that he being a
graduate from Stanford in Computer Science and having an H1B visa from employer, he should not have any
problem in getting his H1B validated. We are anxious. We applied for his H1B in Jan 2005. Do you have any
advice on documents that he must carry or other issues for a successful outcome at the Visa interview in
Dear Mr Varma, I recommend that he take the following:
2. Picture of inside/outside h1b sponsoring company
3. Employer cover letter discussing the fact that your son works there and will continue to work there,
information about their bio, information about other projects and h1b employees. Write a phone number on
there that the consulate officer can call if need be.
4. Attorney cover letter (if applicable)
6. Old I-94s, I-797s
7. Discussion of current client job & what he does there.
8 Educational degrees and educational evaluation
Dear Mr. Sharma,
I have been living in the US for the past 31 years and have become a US citizen for the last 20. Would I be
able to hold on to my US citizenship status while reinstating my Indian citizenship? If so, I also want to
make sure that getting the Indian citizenship will by no means jeopardize my US citizenship in any way. I
assume by getting the dual citizenship, I will be able to inherit land and money, buy and sell property in
Dear Letha, You will be able to maintain US citizenship. You will be able to inherit and buy (nonagricultural) land and
property in India. You should contact the US Indian Embassy in your region (Houston, TX for example) for
filing procedures. I believe they are having some confusion in processing dual citizenship on the Indian side
What is an I-131?
What is a traveling card which sometimes comes with a work permit? Is it any good? Also, will it be safe to
travel with it, for non green card holders, since it is not a green card?
Dear Isha, I believe you are referring to the I-131 which can be utilized to obtain approved travel authorization prior to
the grant of a conditional Green Card. It can be used to travel abroad while your green card is pending, or
under other limited circumstances. It can take several months to get once filed for, but is generally safe to
Medical Exemptions to
Dear Ashwin, I have an elderly parent who is not qualified to write the US examination test for his naturalization. I believe this is due to his problems in learning the language. What are some ways we can overcome this obstacle in gaining my father's citizenship? He has all the other requirements completed. Venkat
Your father could have a disability which would constitute a medical exception to the Naturalization test. There are certain types of disabilities/handicaps which allow a person to bypass the citizenship examination. I recommend you speak to a lawyer and also take your parent to a doctor to determine whether you qualify for this exemption. Ashwin
Adjusting Status after Marriage to
Dear Ashwin, I have a friend who came illegally into America. He recently got married to an American citizen. Can he adjust his status to green card holder after the marriage? He was told by another attorney that is is possible, however, I also heard that it is not possible. Smita
When an individual enters America without inspection it is not possible for him or her to adjust their status without leaving the country. It is important to distinguish those who 'enter without inspection' (illegal/stowaway/etc) and 'overstays'. Individuals who are overstays, i.e., those individuals who entered the US legally, but who overstayed their visas are eligible to adjust their status in the situation you described. Ashwin
Investment for E2 Business Visa
How much money do I need to invest to obtain an E2 business?
The investment requirement is described by the government as "substantial" for the type of business you are developing or buying. You must ensure that you 1. invest at least 80% of the market value of the type of business you are buying/developing and 2. do not secure any loans on the business itself (personal loans are fine). Ashwin
INA Section 214(b) issues in applying for Visitor/Student visas
I wanted to bring my brother over to the US for Diwali, and I sent an invitation letter, but the consulate in Chennai turned him away. What do the consular officers look for in these situations, and what should we watch out for the next time I try to get a visitor's visa for brother or parents? When can I reapply for him?
Dear Lakshmi, Section 214(b) of the Immigration and Nationality Act (INA) states: "Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status..." In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case - that they only intend to visit America for a short duration. In qualifying for B (Visitor) F (Student) or J (Exchange Visitor) visas, an applicant must demonstrate compliance with this section of the law. Most refusals concern the requirement that the applicant possess or maintain a residence abroad that he has no intention of abandoning. Applicants thereby demonstrate that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The INA places this burden of proof squarely on the applicant. (Note that these requirement do not apply to H or L Visa holders who may maintain 'dual-intent').
Consular officers have the last word in deciding who may enter the US and evaluate each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad. Some examples of ties can be a job, a house, a family, and a bank account. These ties bind you to your home country and demonstrate that you will return after your trip to America. Despite the fact that consular officers attempt to provide a case-specific
evaluation, they have limited time allotted to each client. It is imperative that you have a well documented and organized petition which demonstrates the strength of your applicant's case by providing evidence of the applicant's strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants.
You should also attempt to provide documentation of why the visa applicant is coming to the United States. Temporary trips of a short duration (less than six months) for a specified period of time with a clearly defined start and end date (such as a marriage or graduation) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American 'sponsor' are of limited benefit to the applicant - the consular officer is mainly concerned with the qualifications of the applicant
Your brother can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show further convincing evidence of ties outside the United States. The applicant's situation must have substantially changed since the last application. Demonstration of strong ties is still key.