DOL Submits Proposed Amendment to Submission Processes for the E-3 Visa

The Department of Labor (DOL) has submitted a proposed amendment to regulations for nonimmigrant foreign professionals in the U.S. under the new E-3 temporary employment visa category. This new category was established in the REAL ID Act of 2005, a part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief. The act applies to certain Australian nationals coming to the U.S. to perform services in certain specialty occupations.

This proposed amendment would clarify the procedures employers should follow to obtain a DOL-certified Labor Condition Application (LCA) prior to seeking to employ a foreign worker under the E-3 visa category.

According to DOL, employers who wish to employ Australian professionals under this visa category should submit an LCA that includes information required under current H-1B and H-1B1 visa programs. The employer should attest to the following:

It will provide the nonimmigrant wages equal or more than either the actual wage level paid to other employees with similar experience and qualifications for the specific position, or the prevailing wage level for that occupation classification, whichever is greater;

The working conditions for the nonimmigrant will not adversely affect working conditions for other similarly employed individuals;

There is currently no strike or lockout due to a labor dispute in that occupational classification at the proposed worksite;

The employer has provided notice of this LCA to its employees’ bargaining representative for the particular occupational classification. If there is no bargaining representative, the employer must have provided notice via a physical posting (or other means) to its employees in that occupational classification;

As is the case for H-1B and H-1B1 visas, the DOL may choose to review the E-3 LCAs solely for completeness and inaccuracies. After this review is completed, USCIS and the Department of State will process the individual E-3 visa requests. Under this new process, E-3 visa applicants who are not currently in the U.S. should provide the necessary evidence for this classification directly to a Consular Officer when the visa application is submitted.

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