US visas: H-1B cap reached, final rule on E-3

The United States Citizenship and Immigration Services (USCIS) has announced that the 65,000 annual cap on H-1B visas has been reached for the fiscal year 2006. USCIS stated that the final receipt date for applications is 10 August 2005.

Prospective employers wishing to hire foreign specialty workers under the H-1B scheme will be required to wait until 1 April 2006 before filing the petition. Once approved, the employee may not begin work until 1 October 2006.

Prospective employers should remember that an additional 20,000 H-1B visas are available each year to foreign workers who have US-earned Master's degrees or higher. At present, approximately 10,000 visas are still available for fiscal year 2005, and 12,000 visas are still available for fiscal year 2006.

An alternative to the H-1B is the newly developed E-3 category of visas. This visa expands the existing treaty trader and treaty investor visas to include a new category for non-immigrant in specialty occupations.

Currently, the E-3 visa category is available only to nationals of Australia and their dependents, and the visa is numerically limited to 10,500 annually. The specialty occupation requirement will be evaluated using the same criteria as for the H-1B visa, and states that the attainment of a bachelor's degree, or its equivalent, is required as a minimum for entry into the occupation. The prospective employer must file a Labor Condition Application (LCA) with the Department of Labor in the US, which contains attestations relating to the wages and working conditions of the position. Once the LCA is approved, the employee is then eligible to make a visa application at a consular post and must present the original LCA to the consular officer.

One advantage the E-3 visa has of its H-1B counterpart is that spouses of E-3 visa holders are eligible to apply for an Employment Authorization Document, which will allow them to work while in the US as the dependent of a primary E-3 visa holder.