The E-3 nonimmigrant visa classification was created pursuant to the Australia-United States Free Trade Agreement (AUSFTA), and became effective on September 2, 2005. E-3 visas are temporary (“nonimmigrant”) visas and are granted initially for two years and may be extended indefinitely in increments not to exceed two years. To qualify for an E-3 visa, an applicant must demonstrate:
· that he or she is a national of Australia
· that he or she has a legitimate offer of employment in the United States
· that the offer of employment is in a position that qualifies as “specialty occupation” employment
· that he or she has the necessary license or other official permission to practice in the specialty occupation, if required
· that he or she has the necessary academic or other qualifying credentials
· that he or she seeks to stay in the U.S. temporarily
Specialty Occupation: The term “specialty occupation” is defined as an occupation that requires a theoretical and practical application of a body of specialized knowledge as well as an 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. The definition of specialty occupation under the E-3 classification is essentially the same as the definition contained in the Immigration and Nationality Act for H-1B classification.
Labor Condition Application (LCA) Requirement: A Labor Condition Application (LCA) is required to be filed by the employer with the Department of Labor to reflect the job offer at the appropriate prevailing wage rate. The procedures and information needed to file for a LCA under the E-3 classification is identical to that of an H-1B classification.
Basic Labor Condition Application Obligations
The first step in seeking E-3 visa status is the filing of a Labor Condition Application (“LCA”) with the Department of Labor. In order to file an LCA, an employer must be willing to make the following representations:
· That he is offering to pay the alien beneficiary 100% of the Prevailing Wage, or the Actual Wage at the place of employment (as long as the Actual Wage is equal or higher than the Prevailing Wage). The Prevailing Wage is the average rate of wages for those similarly employed within normal commuting distance in the area of intended employment listed on the Application. The Actual Wage is the wage rate paid by the petitioning employer to other workers with similar experience and qualifications who are performing the specific employment in question at the same worksite.
· That he is offering benefits and eligibility for benefits provided as compensation for services on the same basis and in accordance with the same criteria as the employer offers such benefits to U.S. workers (under certain conditions the E-3 worker may be offered “home country” benefits which may differ from the benefits offered to U.S. workers).
· That he is offering working conditions to the E-3 nonimmigrant worker that will not adversely affect the working conditions of workers similarly employed in the area of intended employment;
· That there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;
· That the employer has provided notice of filing of the LCA at the worksite by one of the required methods.
· That the employer will provide a copy of the LCA to the E-3 worker on or before the date he commences employment.
Before returning the signed LCA to our office, the employer must comply with the notice requirements of the LCA. If the position is covered by a collective bargaining agreement, notice must be provided to the collective bargaining representative in lieu of posting. If the position is not covered by a collective bargaining agreement, notice may be provided as follows:
· By posting a hard copy of the LCA (all four pages) notice in two conspicuous places at the place of employment, for example, on an employee bulletin board, where they must remain for a total of 10 consecutive business days; or
· By posting electronically on the employer’s intranet or electronic bulletin board, provided all employees in the same occupation have ready access to the information, for 10 consecutive business days; or
· By a one-time e-mail message to all affected employees in the same occupation.
In most cases, the LCA must be posted at any site where the E-3 worker performs services. There are numerous, detailed, and complicated exceptions to this general rule. If the E-3 worker will work at locations other than the address listed on the LCA, please consult with us about additional posting requirements before proceeding.
Compiling the “Public Access File”
In order to comply with the documentary requirements of the LCA procedure, certain documents must be made available to any interested party, upon request, within one working day. Therefore, the employer must compile and maintain a separate Public Access folder for this LCA which contains the following documents:
· a copy of the certified Labor Condition Application and a copy of this four-page LCA Obligations document.
· a statement of the wage to be paid to the E-3 worker.
· an Actual Wage memorandum which briefly states how the actual wage was computed and states the wages paid to the E-3 worker. The employer must determine the Actual Wage by examining the wages paid to other individuals with similar experience and qualifications who are performing the specific employment in question. This involves three steps:
Defining the specific employment in question: the employer need not include all workers in the same profession if they are not filling the same type of position, but neither should the employer make distinctions based on small variations in job duties. If questioned by DOL, the employer must be able to show that a good faith effort was made to define the group of similarly employed workers.
Identifying from among this group of workers only those with similar experience and qualifications to the H‑ I B worker.
Identifying the differentiating factors that are used to set the individual wages within the selected set of workers. These factors might include length of experience, education, particular expertise, competitive factors, value of client contacts, etc.
If the employer has an established pay schedule or system covering the position in question, this should be included with the memorandum. The Actual Wage Memorandum need not include the mathematical calculations used to arrive at the E-3 worker’s salary; instead, a narrative explanation of the process is expected.
· a copy of the Prevailing Wage determination.
· a statement which identifies the two posting locations and the dates of posting, or a statement documenting that electronic posting or notification was provided.
· a statement which confirms that a copy of the approved LCA was provided to the E-3 worker (no later than the date he reports to work).
· a summary of the benefits offered to U.S. workers and E-3 nonimmigrants alike, including an explanation of how employees are differentiated, if at all. If the E-3 worker will receive “home country” benefits, this should be explained.
· If the employer undergoes a change in corporate structure: then in lieu of filing a new LCA, the employer may update the Public Access file to include a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification and a description of the actual wage system and EIN of the new employing entity.
In addition to making the Public Access file available to anyone upon request, the employer must make other documents available to the Department of Labor, if requested. Payroll records may be called for to substantiate the rate of pay to employees in comparable occupations. You must also be prepared to establish that the working conditions of the E-3 worker, and any other employees in the same occupational classification, are similar to working conditions existing in like business establishments in the local area of employment.
Penalties may be imposed by the DOL if after complaint and investigation the employer has been found in violation of any LCA requirements. The Department of Labor may impose the following penalties:
· the assessment of back‑pay for the E-3 worker if the employer has failed to pay required wages;
· the payment of civil money penalties of up to $1,500 per violation;
· the disqualification of the employer from filing any temporary or permanent employment‑based immigration petitions for a period of at least one year.
10,500 Limit Per Year: The number of visas that will be issued under the E-3 visa classification is limited to 10,500 per fiscal year. Spouses and children of the E-3 Australian nationals’ applicants will not be counted against the 10,500 cap.
Spouse and Children: The E-3 visa classification applies to spouses and children of the E-3 visa holder, and is listed as an E-3D (dependent) visa. In order to qualify for an E-3D visa, one must demonstrate to the consular officer that the dependent applicant is related to the E-3 visa holder either through marriage or birth by showing its appropriate documentation, and that the E-3 visa holder is indeed the recipient of an E-3 visa by showing the visa approval notice. Spouses and children are not required to posses the nationality of the principal E-3 visa holder.
Spouses of E-3 visa holders are entitled to apply for an Employment Authorization Document through the USCIS, and engage in employment in the United States upon authorization in any kind of work position.
Filing the E-3 Application: The E-3 application must be directly filed at a US consulate abroad. The applicant must present the original or copy of the Labor Condition Application signed by the prospective employer and approved by the Department of Labor to the US Consular Officer at the time of visa application.
E-3 EMPLOYER CHECKLIST
1. the job title
2. a detailed job description
3. a statement of the minimum requirements for the position which includes:
4. the specific academic degree required
5. the minimum number of years experience required, if any
6. the title of the supervisor for the position
7. the number of employees the E-3 worker will supervise, if any
8. a statement of any licensing requirements for the position
9. the proposed salary
10. location where employee will work
11. a written description of the company including nature of products or services, number and location of facilities, number of employees, gross revenues, number of years in business OR a recent annual report, descriptive corporate profile, company brochures, or other printed information which provides this information OR reference to the company’s web site where this information may be found
E-3 Applicant Checklist
Your Full Legal Name: __________________________________
copies of first few pages of passport for yourself and all dependent family members, including copies of any U.S. visas and biographical pages
Copy of your most recent resume
Copies of all educational documents (college and above), including diplomas (and transcripts if readily available; if diploma is not readily available, applicant must provide confirmation of completion of university degree from an authorized university or college official). Also please provide translations for all pertinent foreign language documents
Copy of any previously conducted formal credential evaluation
Information Required (please continue on separate sheet, if necessary)
1. Any other names used: _________________________________
2. U.S. Social Security Number (if any): ________________________
3. Please list dates of any prior visits to the U.S. and visa status used. (If B-1 or B-2 visitor status only, specific dates are not required; a statement such as “several short visits between 1985 and 1993 – not more than three weeks at one time” is sufficient –for any other status, please be specific) Entered: _______________ Departed: ______________ Status: ________________ Entered: _______________ Departed: ______________ Status: ________________
4. Have you ever applied for an Immigrant Visa or Permanent Residence in the U.S.? _______________ If so, where? _____________________________
5. Has any visa petition filed on your behalf been denied? _______________
6. Have you ever been in deportation or exclusion proceedings? _______________
7. Have you ever held a J-1 Visa? ___ Yes ___ No If yes, were you subject to the 212(e) regulation requiring a waiver of the two-year foreign residency requirement? ___ Yes ___ No Has your spouse (if applicable) ever held a J-1 Visa? ___ Yes ___ No If yes, was your spouse subject to the 212(e) regulation requiring a waiver of the two-year foreign residency requirement? ___ Yes ___ No
8. Are you married? (if yes, please complete the following): Spouse’s Name: Last/Family Name: First/Given Name: Please list spouse’s prior periods of stay in the U.S. (if none, state “NONE”): Status: _______________ Dates: ________________ Please list all periods of spouse’s employment in the U.S. (if none, state “NONE”): Company: _______________ Duration: ____________ Status: _____________
Company: _______________ Duration: ____________ Status: _____________
9. Do you have any children?__________ (If yes, please complete the following for each individual child) Child’s Name: Last/Family Name: ____________________ First/Given Name: ____________________
10. What is the location of the U.S. Consulate where the application for the visa will be made?
11. Please list all periods of employment in the United States (if none, please state “NONE”; if you were a contracted employee, please state the name of your actual employer not the client to whom you were contracted)
Company:_______________ Duration:_______________ Status:_______________
Company:_______________ Duration:_______________ Status:_______________
Company:_______________ Duration:_______________ Status:_______________
12. Are there any specific issues you are concerned about or wish to bring to our attention? ____________________________________________________________