Australians May be Eligible for New E Visa Status
Posted May 13, 2005
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Note : At the time this article was written, the H.R. 1268 Bill had passed the U.S. House and Senate. It has now been signed by the President, which makes it law. Please see our May 12, 2005 NewsFlash for details.

While there is a great deal of interest in this new category, it is not yet available as of this writing. We have contacted the Department of State (DOS) to inquire about the procedures and availability of E-3 visas. They advised that the consulates would not be issuing this type of visa until DOS issues procedural guidance on how to do so.
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We at The Law Office of Sheela Murthy have recently elaborated on aspects of H.R. 1268 in our MurthyBulletin articles. This is a piece of pending legislation with some important immigration provisions. [See Bill May Provide Limited Relief for Retrogression and H2Bs (May 6, 2005). See also H2B Relief Legislation and Asylum Provisions under HR 1268 Real ID Bill, both published in the May 13, 2005 edition of the MurthyBulletin and available on MurthyDotCom.]
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Es for Australians Differ from Treaty Trader / Investor Visas
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The H.R. 1268 Bill includes a provision that is limited to nationals of Australia. If H.R. 1268 passes, which is likely, the Bill would permit nationals of the Commonwealth of Australia to seek E status. This E status, however, is distinct from that available to E status treaty traders and investors. This E status would be for Australian nationals whose employers file labor condition applications (LCAs), with the attestations required for H1B1s from Chile and Singapore, who will work in specialty occupations. The term "specialty occupation" would be defined the same for the Australian E nonimmigrants as for persons who hold H1B status. Only up to 10,500 Es per fiscal year would be granted to these Australian nationals. This numerical limitation only applies to the beneficiaries and not their dependents.
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E for Australians is Possible Alternative to H1Bs
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If the Bill is passed, the E option for Australian nationals may free some of the H1B cap numbers that otherwise would he used by Australian nationals. It is unlikely, however, that Australians account for as many as 10,500 of the cap-subject H1Bs each year. Further, it is possible that some persons who would be eligible for the Australian E would choose to pursue the H1B instead. Though the E does not have a six-year limitation, the E does not carry strict dual intent. Therefore, relief to the H1B system will be limited.
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Who is a National for this E visa Eligibility?
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We do note that the eligibility for this category is for Australian nationals. "National" is defined in U.S. immigration law as a person who owes permanent allegiance to a particular state. A U.S. national is defined as a citizen of the United States or a person who, although not a citizen, owes permanent allegiance to the United States. Thus, it would appear that eligibility would be available for Australian citizens, naturalized or native-born, and potentially some other situations in which a person could qualify as a national of Australia.
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Conclusion
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We at The Law Office of Sheela Murthy, P.C. will continue to monitor the progress of H.R. 1268 to update MurthyDotCom and MurthyBulletin readers if and when the bill is signed into law.