34.6 E-3 Specialty Occupation Workers [Chapter 34.6, added 12/22/2005]

(a) Eligibility Requirements.

(1) The Alien .

An E-3 alien must be a national of the Commonwealth of Australia coming to the U.S. to perform services in a specialty occupation.

(2) Specialty Occupation .

A specialty occupation for an E-3 alien is defined in the Act in the same manner as in the H-1B context. In particular, pursuant to section 214(i)(1) of the Immigration and Nationality Act, “specialty occupation” means an occupation that requires the theoretical and practical application of a body of highly specialized 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. As such, in order to be eligible for an E-3 classification, an alien must be able to show he or she will be employed in a specialty occupation in the U.S. and he or she possesses the required U.S. bachelor’s or higher degree (or its equivalen t) in the specific specialty to meet the minimum requirement for entry into the occupation in the U.S.

(A) Change of Status .

An alien is also expected to meet any other occupational requirements specified by the jurisdiction in which the alien will be employed, such as licensure or other official permission to practice in the occupation in question. An alien seeking to change status to E-3 must submit a certified copy of any license or other official permission to practice the specialty occupation in the jurisdiction of intended employment, if such licensure or other official permission is required in order to commence the duti es of the specialty occupation. If licensure is unnecessary to start employment immediately in the intended specialty occupation, the alien must submit evidence that he or she otherwise meets the requirements for obtaining the license or taking the relevant jurisdiction’s licensure examination, as well as evidence that he or she will, upon passage of the examination, be obtaining the required license within a reasonable period of time after being granted E-3 classification.

(B) Extension of Stay.

For E-3 aliens applying to extend their stay in the U.S. in a specialty occupation that requires a license or other official permission to practice in the specialty occupation, the alien must submit, together with his or her extension application, a copy of the license or proof of other official permission to practice the occupation in the jurisdiction of intended employment .

(3) Length of Stay .

E-3 Specialty Occupation Workers may be admitted initially for a period not to exceed the validity period of the accompanying E-3 labor attestation (i.e., for a maximum of two years), and extensions of stay may be granted indefinitely in increments not to exceed the validity period of the accompanying E-3 labor attestation (i.e., for increments of up to two years each). As there is no limit on the total length of stay for an E-3 alien in the legislation, there is no specified number of extensions a qualify ing E-3 Specialty Occupation Worker may be granted. Under the current E regulation, 8 CFR 214.2(e)(5) , an alien classified under section 101(a)(15)(E) as an E-3 nonimmigrant shall maintain an intention to depart the United States upon the expiration of termination of E status. An application for initial admission, change of status or extension of stay in E-3 classification, however, may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.

(4) Educational Requirements.

An E-3 alien must be able to show that he or she possess the required U.S. bachelor’s or higher degree (or its equivalent) in the specific specialty.

(5) Labor Attestation .

A certified labor attestation must have been issued on behalf of the E-3 Specialty Occupation Worker (in the form specified by the Department of Labor.)

Note 1:

The dependent spouse and children of an E-3 principal, if otherwise admissible, may be granted E-3 classification notwithstanding the spouse or children’s nationality.

Note 2:

Notwithstanding AFM Chapter 55.2(d)(2) , the dependent spouse of an E-3 nonimmigrant may apply for work authorization. Public Law 107-124 added a new subsection to section 214(e)(6) of the INA which states that in the case of the spouse admitted under section 101(a)(15)(E) of the INA who is accompanying or following to join a principal alien admitted under this section, the Secretary of Homeland Security “shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.” As such, spouses of the principal E-3 aliens are eligible for work authorization. Specifically, in order to obtain an employment authorization document, the E-3 nonimmigrant dependent spouse mu st file Form I-765, Application for Employment Authorization, and provide evidence that he or she qualifies as an E-3 spouse and that the nonimmigrant principal is in E-3 principal status. Except as noted below with respect to where to file, requests for work authorization filed by such persons will be processed in a similar manner to the requests from spouses of E-1 and E-2 aliens as outlined in the February 22, 2002 memo entitled “ Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petitions.”

The Form I-765 must be submitted to the Service Center with jurisdiction over the dependent spouse’s place of residence. However, applications for employment authorization concurrently filed with Form I-129 for E-3 principal aliens can only be filed at the Vermont Service Center.

Note 3:

There is an annual cap of 10,500 initial E-3 applications for each fiscal year that applies to principal E-3 aliens. This cap applies to all initial E-3 applications made abroad and to all change of status to E-3 applications made through USCIS. The cap does not apply to extensions of E-3 provided that the E-3 alien continues to be employed by the same employer named in the application for change of status to E-3 classification or, in the case where an alien first obtained E-3 classification by applying for an E-3 visa abroad, in the alien’s original E-3 visa application. In cases where an E-3 alien seeks to change employers either by applying for an extension of nonimmigrant stay within the United States or by applying for a new E-3 visa at a U.S. consulate abroad, the E-3 alien will be counted against the cap again. The dependent spouse and children of an E-3 principal alien will not be counted against the annual cap.

(b) Application Process .

Because an E-3 Specialty Occupation Worker does not require a separate petition, E-3 status may be obtained either directly through the Department of State (by applying for an E-1 visa) or, in the case of an alien already in the U.S., by applying to the Vermont Service Center for a change of status or extension of status on Form I-129 . As the current Form I-129 E Supplement refers only to the E-1 and E-2 visa categories, the E Supplement is not currently required for E-3 aliens. Supporting documents to be submitted with an E-3 application include: (1) proof that the alien is a national of the Commonwealth of Australia; and (2) a letter from the U.S. employer describing the specialty occupation to be engaged in, the anticipated length of stay, and the arrangements for remuneration, evidence the alien meets the educational requirement f or the specialty occupation, which must be a U.S. bachelor’s degree or higher (or its equivalent) in the specific specialty, evidence the alien meets any other licensure or occupational requirements and an U.S. Department of Labor (DOL) issued certified labor condition application (LCA) for E-3 Specialty Occupation Worker (in the form specified by DOL.

NOTE:

DOL has informed USCIS that applicants may not submit, as part of their E-3 application, an LCA that was filed in conjunction with a separate petition for H-1B classification in lieu of the required E-3 Specialty Occupation Worker LCA. Until DOL develops a separate LCA Form for the E-3 classification, prospective E-3 applicants may submit Form ETA-9035 to a special address to be provided by the DOL, together with a request that the dorm be annotated as an E-3 LCA. These annotated Forms ETA-9035 should be distinguished from H-1B Lucas (which are also submitted on Form ETA-9035) that bear no such DOL-approved “E-3” annotation.

(c) Approval .

If, from the evidence submitted, the application appears approvable, endorse the approval block and issue Form I-797 (through CLAIMS), showing the period of validity and the alien beneficiary’s name and classification. An E-3 application may be approved for a period not to exceed the validity period of the accompanying E-3 labor attestation (i.e. for a maximum of two years) and extended in increments not to exceed the validity period of the accompanying E-3 labor attestation (i.e., for increments of up to t wo years each).

(d) Denial .

If the evidence does not clearly establish the beneficiary’s eligibility for E-3 status and a request for additional evidence does not appear warranted, prepare a denial notice setting forth the specific reasons why the application cannot be approved. If a request for evidence is warranted, issue accordingly.