E3 Visa Update:

DOL's Guidance For Filing LCA

Introduction

VisaPro readers will recall that the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, was signed by the President on May 11, 2005. The Act established a new nonimmigrant visa category for Australian professionals seeking to work in the United States. The Act provides for 10,500 new visas per fiscal year for Australian nationals seeking temporary work in “specialty occupations,” as defined under the H-1B provisions of the Immigration and Nationality Act (INA).

The statute requires that sponsoring employers file a Labor Condition Application with the Department of Labor. To certify a position for E-3 status, the Department of Labor must find and certify to the Departments of Homeland Security and State, that the employer’s attestations meet the requirements of INA Sec. 212(t)(1), the section governing labor certifications for the H-1B1 program.

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The Department of Labor is coordinating with other Federal agencies with an interest or potential role in the E-3 program to determine and issue further guidance on the specific parameters of the program and how the program will be administered. In the interim, the Department, in a notice published in the Federal Register earlier this month, has suggested that employers seeking to sponsor workers under the E-3 category:

  • Use Form ETA 9035, Labor Condition Application for H-1B & H-1B1 Nonimmigrants, to request certification under the E-3 program.
  • Print “E-3–Australia–to be processed” at the top of each page of the form. Please print legibly and use blue or black ink.
  • File the completed LCA with the Department of Labor’s National Office.

Questions regarding E-3 Labor Condition Applications may be addressed to: Leticia Sierra, Manager, Temporary Programs, U.S. Department of Labor, Employment and Training Administration, Division of Foreign Labor Certification, 200 Constitution Avenue, NW, Room C-4312, Washington, DC 20210; (202) 693-3010 (this is not a toll-free number).


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Earlier, the Department of State had informed American Immigration Lawyers Association (AILA) that it is actively working to finalize implementation of the new E-3 visa for Australian nationals performing services in a specialty occupation.

Draft regulations are currently undergoing internal review by other interested agencies. Simultaneously, the State Department is seeking assurances from the Australian government that American citizens will receive reciprocal visa treatment. According to Visa Office, implementing regulations should be ready for public notice in about two months.


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