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Visa category opens US doors for Aussie lawyers

Visa category opens US doors for Aussie lawyers

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Australian lawyers looking to practice in the US have more options than other foreign nationals – but finding a foothold in the market remains a challenge, according to two global firm partners.

Under the Australia-United States Free Trade Agreement (AUSFTA), Australian citizens have the option of applying for a visa in the E-3 category, which is a visa for professionals in specialty occupations.

"It is definitely easier for Australians to obtain US work visas compared to citizens of most other countries," Austin-based K&L Gates partner and immigration specialist Brian Graham said.

"Not only are the typical working visas – the H-1B and L-1 – available to Australians, but they also benefit from the treaty-based E-3 visa. The E-3 is a unique work visa which is superficially similar to the H-1B but made available exclusively to Australians working for US employers in a professional capacity."

Chicago-based Baker & McKenzie partner David Malliband told Lawyers Weekly that while obtaining employment-authorised visa status to live and work in the US is still notoriously difficult for foreigners, the AUSFTA substantially simplified the process for Australians.

"The E-3 category is available to professionals with university degrees who are offered positions in the US that normally require at least a Bachelor’s Degree in a specialty field for entrance into the occupation," Mr Malliband said.

"Attorney positions will generally qualify," he added.

While the requirements for the E-3 category are virtually identical to the H-1B category, there are multiple benefits to the E-3 category.

"There are no numerical limitations to the visa, making it available year-round," Mr Malliband said.

"And there is no requirement for first obtaining a US Citizenship and Immigration Services (USCIS) approval, reducing the overall time and costs for the process."

According to Mr Malliband, the process does not require an initial filing with the USCIS, but it does include a preliminary filing with the US Department of Labor (DOL) to confirm that the foreign national will be offered the prevailing wage for the occupation in the geographic area.

"The DOL generally processes those applications in seven business days or less," he said.

"Once the DOL approval is received, the foreign national may schedule an E-3 visa interview with the local US Consular Post to apply for the E-3 visa. E-3 visas are generally granted for two years and may be extended in two-year increments following the same process.

"For US employers who have identified an Australian citizen for an Attorney position in the US, the E-3 visa category provides an excellent solution to the employment authorisation issue."

While this may be the case, gaining admission to practice as a lawyer in the US is still difficult, according to Mr Malliband.

"Becoming qualified to practice in the US can be a bit of a challenge, without a US JD," he said.

"This turns on each US state’s bar rules – historically, it was easier to be accepted to sit the California or New York bar exams (as a foreign lawyer), although the exams themselves are notoriously quite difficult. Other states have their own rules – many require a US JD, or a certain number of years practising as an admitted attorney in another US state, before allowing admission."

He continued: "While there seems to be a general movement towards loosening up some of these restrictions for non-US lawyers to get admitted in the US, this is a slow process."

Further to this the legal employment market in the US is very tight, and an oversupply of lawyers making the industry extremely competitive.

“There is a surplus of lawyers relative to the number of opportunities in big law firms,” Mr Malliband said.

“Some opportunities exist, however, in smaller firms, local firms, public interest, etc.”

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