Expanded Definitions! E-3 for Australians

As of Sept. 2, 2005, a new regulation has come into effect that expands the definition of who qualifies for the non-immigrant visa (E-3).

It applies to foreign nationals who come to the United States with the exclusive intent of performing “Specialty Occupations.’’ These nationals must fall under the categories of Treaty Trader or Treaty Investor. Accordingly, Australians who exclusively perform “Specialty Occupations” as well as their spouses and children are eligible. The annual 10, 500 max E-3 visa quota does not affect spouses and children. E-3 spouses are allowed to work in a position other than “Specialty Occupation” but must apply for employment authorization.

As a precondition, the Australian national must file a Labor Condition Application (LCA) with the US Department of Labor. The LCA needs to state wage and work conditions. The applicant is required to bring a certified copy of the DOL approval when applying appearing at US consular office that will determine the satisfactory eligibility of the case.

Useful Definitions:

1) Treaty Trader: the employee carries out substantial international trade on his/her own or an employer’s behalf. The foreign national intends to depart the US upon termination of E-3 status.

2) Employee Treaty Trader: the employee possesses essential executive or supervisory skills; is engaged in a trade that involves at least 50% of the volume of a particular exchange between his/her country and the US. More specifically, the employee should be able to make policy and organizational decisions, not low-level employee supervision. The country of which the applicant is a national should have signed a commerce, friendship, or navigational treaty with the US. This category also includes representatives of foreign media.

3) Specialty Occupation: a minimum of Bachelor’s degree or equivalent, proven skills, uniqueness of experience, and salary the applicant is able to negotiate.

4) Treaty Investment: binding commitment of substantial capital (funds and other assets) with the purpose of generating profit.