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Ashwin
Sharma is an Immigration Lawyer specializing
in H-1B, E-2, E-3, L-1 visas as well as Permanent
Residency Petitions. He is based in Jacksonville,
Florida and represents clients internationally.
He can be reached at: 904-779-0111,
904-807-7485 or
jaxlawyer@gmail.com
His website is located at http://www.immigrationfirm.net/
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Ashwin Sharma, Esq.
Attorney
& Counselor at Law, Leimbach & Associates,
8563 Argyle Business Loop, Suite 5, Jacksonville,
FL 32244 |
Background
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". |
Qualifying Individuals
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. |
Filing Procedures
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.
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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.
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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.
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| 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 USCIS. |
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.
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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 |
| E-3 Visa Links |
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