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New US visa category created exclusively for Australians

By Alexander A. Jeglic, Austrade Washington DC

Resulting from the Australia-United States Free Trade Agreement (AUSFTA) negotiations, US Congress recently enacted Section 501 of the Real ID Act of 2005 which has modified the Immigration and Nationality Act to allow for a new category of E Treaty Visa. The new modification created Section 101(a)(15)(E)(iii), which allows nationals of the Commonwealth of Australia to enter the United States to perform services in a 'specialty occupation' under the new E-3 Visa category.

With 10,500 E-3 Visas available each fiscal year, this new visa will greatly assist companies seeking to take advantage of opportunities available under the new Australia-United States Free Trade Agreement.

So how do Australians apply for this new visa?

First, you need to fulfil the 'specialty occupation' criteria. This is defined as an occupation that requires theoretical and practical application of a body of highly specialised knowledge, and 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. This definition parallels that used by the H1-B Visa category.

Then, the US company seeking to employ the Australian citizen will be required to file a Labor Condition Application with the US Department of Labor. The Labor Condition Application is used to demonstrate that the Australian citizen will receive the prevailing wage and benefits provided to US workers in similar jobs.

Once the Labor Condition Application is approved then you will be required to obtain the actual E-3 Visa from a US Embassy or consulate abroad. This step is not yet crystal clear as the implementing regulations have not yet been published. What we do know for certain is that the Visa will be issued at the consular level rather than by the US Citizenship and Immigration Services (USCIS). This will expedite the Visa process as the E-3 Visa will not compete with the millions of pending applications currently before the USCIS and save Australians great frustration.

It is expected that E-3 Visa holders will be admitted to the US initially for a two-year period and will be able to apply for two-year extensions. The cost to obtain the visa is expected to be US$185, which is significantly less than most other US Visa categories. Another unique benefit of the Visa is that it allows the spouse of Visa holders to also work within the United States. This eases the immigration constraints on families looking to settle in the US.

In summary, the new E-3 Visa is a great victory for the Australian people and grants unprecedented access to the US marketplace.

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