Visa Options for Specialty Workers from Chile, Singapore and Australia

Like NAFTA, trade agreements have created special visa set-asides for temporary workers coming to the United States from Chile, Singapore and the Commonwealth of Australia (encompassing the continent, Tasmania and more than 8000 islands in its maritme borders). Applicants may apply directly at US consulates abroad without first obtaining USCIS approval of an I-129 petition, thus giving these visas their Fast Track H-1B nick name. Although numerical limitations exist for each country, they have never been reached and therefore nationals from these countries often remain visa-eligible when H-1Bs for all others have been exhausted.

Substantive Requirements
E-3 applicants from Australia must meet the standard specialty occupation contained in the H-1B Regulations: For purposes of the H-1B1 program, specialty occupation means an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. INA 8 U.S.C. §1184(i)(3).

H-1B1applicants from Singapore must also meet the standard specialty occupation definition; however there are two additional occupations which will qualify for an H-1B1 visa, which have alternative credentials requirements:

Disaster Relief Claims Adjuster: Baccalaureate or Licenciatura degree, or Titulo Profesional, and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.

Management Consultant Baccalaureate or Licenciatura degree, or Titulo Profesional. If the degree is in a discipline not related to the area of the consulting agreement, then equivalent professional experience as established by statement or professional credential attesting to three years experience in a field or specialty related to the consulting agreement is required.

H-1B1 applicants from Chile are eligible under the preceding exceptions for Disaster Relief Claims Adjusters and Management Consultants as defined above, but also may qualify in the following occupations with less than a bachelor’s degree:

Agricultural Manager Baccalaureate or Licenciatura degree; or Titulo Profesional; or post-secondary certificate1 requiring three years of study in the specialty and three years experience in the specialty. (Post-secondary certificate means a certificate issued on completion of post-secondary study, by an institution recognized by the Government of Chile, or accredited by the relevant competent authority in the United States.)

Physical Therapist Baccalaureate or Licenciatura degree; or Titulo Profesional; or post-secondary certificate requiring three years of study in the specialty and three years experience in the specialty.

Licensing Requirements: H-1B1 applicants, unlike H-1B applicants, do not have to be licensed in the occupation at the time of the visa application. Applicants are expected to comply with state licensing requirements after entry. (Memo, Yates, Assoc. Dir. Operations. USCIS (Jan 8, 2004) Infonet # 04030361; 9 FAM 41.53 N28.6

Process
E-3 employers must first obtain a prevailing wage determination from the Department of Labor. With the determination, they can then submit a Labor Condition Application. H-1B1 applications do not require a prevailing wage determination. When completing the, ETA 9035, the proper visa classification must be indicated. The iCert portal contains a separate tab for the E-3 Labor Condition Application.

For both H-1B1 and E-3, the approved LCA must be submitted to the consulate with a written offer of employment which includes, information as to the specialty occupation qualifications, credentials of the applicant and terms of remuneration. In addition, the applicant’s credentials for the position offered should available to be presented at the visa interview.

According to 9 FAM 41.53 N27.5 The alien must satisfy the consular officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. The circumstances surrounding an application should reasonably and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment. An intent to immigrate in the future, which is in no way connected to the proposed immediate trip, need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.”

Duration of Stay
E-3 visas for Australian nationals are issued in two year increments and are renewable indefinitely.

H-1B1 visas for Chileans and Singaporeans are issued in one year increments and are renewable indefinitely. Labor Condition Applications should be completed in two year increments, thus eliminating the need to refile the LCA annually and to meet the requirement that the third extension may only be approved if there is an LCA approved for a two year period.

Dependents
Spouses and children under 21 are issued E-3 and H-4 visas respectively. Spouses of E-2 applicants are eligible to apply for an employment authorization document after arriving in the United States. The application is submitted on form I-765 and submitted to the Service Center having jurisdiction over their place of residence. If applying for an extension or change of status in the US, the I-765 may be submitted with the I-539 application to the Vermont Service Center.

Change/Extension of Status

To change to an H-1B1 or E-3 visa, inside the United States, normal I-129 petition procedures should be followed. Applications must include the approved Labor Condition Application, offer of employment, proof of nationality and qualifications for specialty occupation designation. Extensions of stay would also be filed on I-129 forms. Applications for changing or extending the stay of dependents are filed on form I-539. A change of employer also requires the filing of an I-129 Petition.

Filing Fees
E-3 applicants in or outside the US have no special fee requirements. They are required to pay the normal application fees.

H-1B1 applicants applying outside the United States are subject to the normal visa processing fees. The $500 fraud fee does not apply to the H-1B1 program. However, if the H-1B1 files an I-129 for an extension or change of status/employer the Training Fund fee of $1500 or $750 must be paid by the employer.

Numerical Limitations:
E-3 :10,500 per fiscal year outside of the H-1B cap
H-1B1 Chile: 1400 per fiscal year set aside from the 65,000 H-1B cap
H-1B1 Singapore : 5400 per fiscal year set aside from the 65,000 H-1B cap

About vbimmigration

For More Information Call 215 979 1840 Immigration Law Partner at Duane Morris, LLP. 20 years representing companies and individuals in all aspects of immigration law. H-1Bs, L-1s, TNs, PERM, Global immigration; compliance; working visas; green cards; consular processing citizenship and deportation.
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