Transfer to an H1B or E3 Work Visa From…

Ok this has to be one of the most common questions I get asked by everyone on this blog and is also in many of the comments I see so I thought it important to cover.

Now there are many issues with transferring and depending on the visa you want to transfer to there are different qualifying criteria so it is important to be aware  of those. I will cover this topic more in depth for specific visa classifications, particular cases like the F1 Student, J1 or H1B/E3 work visas as they tend to be the most common that people want to transfer too while still in the country.

A change of status is not automatically granted even if you qualify and the USCIS will also determine on your unique case how long to extend your visa period for even if it is granted. It is all very arbitrary sometimes but generally you will be successful if they deem your intentions to be genuine and you have not done anything wrong under your current status.

You should not that there are certain visa categories you cannot transfer from while in the US so you have no choice under these visas to leave the US to apply for a new visa.

This includes;
C Visa (aliens in transit)
D Visa (usually for flight/ship staff, etc.)
K1/K2 (fiancee visa and dependent of fiancee)
S Visa (witness or informant)
TWOV (transit without visa)
Tourist under waiver program classified when you receive GREEN I-94W form when you enter US
Also; to note;
J1 visa can’t transfer/extend if they are subject to the 2 year residency rule (unless they have followed the long government channels to get this condition revoked)
M1 vocational visa can’t transfer to F1 student visa. They also can’t transfer to H visa category where the training helped them qualify for the H visa.  ( the M visa is used for things like pilot training, etc.)

Essentially there are some other basic requirements you must meet to also change your status such as;
– Have entered the US legally
– Not have done anything in the US to immediately disqualify you from consideration
– No factor requiring you to leave the US prior to re-entry and admission under your new status (often determined by USCIS)
– You have submitted your application prior to the expiration date recorded on your I-94 form given to you and stamped/dated when you entered the US (usually stapled inside you passport near you current visa)

NB: Your passport must be valid for your entire stay of applied period for your new visa

TO BEGIN TRANSFER

You have to file form I-129 to the USCIS for the categories below and this approval for the change of status has to be approved before you can begin peforming the activities under your new non-immigrant visa category.
If you have a spouse/dependents they need to file form I-539 to change their status. It is a good idea if this is your case to file all together so they are judged at the same time. All dependents can be filed on the same I-539 form.

The is the list requiring the I-129 form filing:
E1/E2 (Treaty Traders and Investors)
E3 (Australian temporary worker)
H1B/H2A/H2B/H3 (Temporary Workers)
L1A/L1B (Intracompany Transferee)
O1/O2 (Aliens with Extraordinary Ability)
P1/P2/P3 (Athletes & Entertainers)
Q1 (International Cultural Exchange)
R1 (Religious Workers)
TN1/TN-2 (Canadians & Mexicans covered under the North American Free Trade Agreement (NAFTA))

To qualify for the visa categories below you have to file form I-539.

A (Diplomatic & Other Government   Officials, Immediate Family members, Employees)
B1/B2 (Visitors for Business or Pleasure)
E (Treaty Traders & Investors Dependents Only)
F (Academic Students & Dependents)
G (Foreign Government Officials & Certain Immediate Family Members)
H4 (Temporary Worker Dependents Only)
K3/K4 (Spouse of U.S. Citizen & Minor Child Accompanying)
L2 (Intracompany Transferee Dependents Only)
M (Vocational & Language Students and Dependents)
N (Parents & Children of Certain People  Who Have Been Granted Special   Immigrant Status)
NATO (NATO Representatives, Officials,  Employees, and Immediate Family Members)
O3 (Aliens with Extraordinary Ability Dependents Only)
P4 (Athletes and Entertainer Dependents Only)
R2 (Religious Worker Dependents Only)
TD (TN Dependents Only)

It is recommended by the USCIS to file about 60 days prior to your date on your I-94 expiring. You can still stay in the US while your case is pending even if this is beyond your expiration date on your I-94. However during this time you will be considered not under any non-immigrant status and not be able to perform any activities (i.e. study, work. etc.) until your case is approved.

To check the status of your case, you will be mailed a receipt with a number on it which you can input on the uscis.gov website to see what is happening with your application. There is a part on the website regarding how long each of the various centers take to process these applications but generally if everything is in order it can often be done in less than a few weeks.
For students there is usually some sort of early inital approval you can receive so you can begin studies at the start of a semester.

In your application you will send your current I-94 form and be mailed a new one with a new date if you are approved under your new status. If you are denied you immediately considered ‘out of status’ and legally are required to leave … although many of course decide now to illegally stay longer.

It can always be good (and at time frustrating but necessary 🙂 ) to call the USCIS in these situation so there number if you are calling within the US is 1800-375-5283

I hope this helped provide information helpful to you and let me know if you want to cover other general parts of the process.

CJ

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98 thoughts on “Transfer to an H1B or E3 Work Visa From…

  1. @ Don • Feb 7, 2012 @6:23 am

    Hi Don, did anyone get back to you regarding your post? I am interested in the latter part of your post “coming towards the end of my E3 status and want to change to a B2 to travel”.

    If anybody could answer this that would be great fully appreciated.

  2. Hi, I am still a little confused. Do I need my employer to file the I-129 with the LCA 9035, and then attend the interview back in Australia?
    Also is filing the I-129 for an E3 for free. I have downloaded the instructions and I have seen some filing fees for the company – but have read here that it is for free? Can you clarify for me.

  3. I’m current on J-1 Alien Physician Visa (under subject to 2 year rule), which expires in June ’12. Can I change from J-1 (Medical) to E-3 visa? If so, can I change from E-3 Visa (not telling them during the interview for E-3 application) back to J-1 Visa Waiver?

  4. Angela if you are filing an I-129 form in relation to the E-3 visa that means you are either extending your E-3 status within the US or changing from another visa type to E-3. In those cases, there is the standard filing fee for that form. E-3 visa applications which are down outside the US via a Consulate interview just need the ETA-9035e filing only which is free that gives you the approved LCA.
    Cj

  5. Thank you CJ. Can I confirm that the fee is $325 for the filing of the I-129. Is there any other costs at all to my employer/myself?
    After my I-129 is approved, I will need to do the whole interview process in Australia, is that all correct?
    Thank you so much!

  6. Hi CJ,

    Best site I have found so on US visas. I am an Australian on an L1 visa and have been offered a position by another company. As the L1 is tied to my current employer is it possible to change status to an E3 with just an I-129 form?

    Ta

  7. Has anyone else been on a J1 VISA and then transferred to an E3 whilst working at the same US employer they were working at during the J1 visa. If so, please can you contact me at angela.li22@hotmail.com, I just have one or two questions to clarify the process. Thanks in advance!

  8. I traveled to US on b2 visa to meet my husband but i dint want to stay away any longer so i changed my status to dependent F2. I am Australian and now i want to apply for job and have been talking with consulting companies for opportunity. My concern is can i look for jobs on F2 status and what do i tell my employer if they ask me regarding my eligibility to work?
    Can i change my status from f2 to E3???
    Thanks

  9. Sumky you can change from a F-2 visa to an E-3 visa only if you are an Australian citizen. You can tell your employer whatever you choose but your situation is no different to someone coming here as a tourist as ultimately your employer has to sponsor you for you to legally work here.
    Cj

  10. Angela yes the filing fee for I-129 is $325 if done within the US if you are transferring from another visa status and you can work once approved. There is no need to do a interview outside the country then until you next leave the US to get a new visa stamp to return back into the country.
    Cj

  11. Hi there,

    I got very useful information from this blog. I also have one que. I am australian citizen and currently on F1 visa. I will change this visa to E3 visa once i will get the offer letter. I heard somewhere that because my husband is on H1 visa I also need to go for H1. Is that correct? Also how long does it take to change from F1 to E3 visa. As per my knowledge there is no premium processing for E3 visa.

    Thanks

  12. Hi TJ,

    Every adult’s individuals visa can be completely independent of each other. So your husband can be on an H-1B visa and your visa can be an E-3 visa. The average processing time assuming all goes normally tends to be around 3 months to transfer a visa and yes there is no premium processing for the E-3 visa.

    Cj

  13. Hi,
    I’ve read through these create questions and answers and noticed question about B2 to E3 transfers but not exactly the case I have, so apologies in advance if this is seen as a repeat question.
    I’m currently in the US on a E-3 visa which is/was valid until April 2013. My work moved me to a H1-B (for various reasons) which will become valid on October 1st. I have a overseas trip planned for November, and am wondering if I can go and return using the original E-3 ?
    Using the E-3 rather then the H1-B would mean I don’t need to go to a consulate. Since both a non-immigrant work visas, my question is, did the H1-B make my E-3 invalid (on the backend)? Or do I have two briefly valid overlapping visas?

  14. Michael if your H-1B petition has been approved that means on October 1, your E-3 visa becomes invalid while you are in US (you can’t have 2 valid visas at same time). So it means when you leave the country in November, you have to go to a US consulate and get an H-1B visa stamp as you would not be able to return to US on your E-3 visa at that time.
    Cj

  15. Hi there,

    Firstly, what a great site! Secondly, if I just got laid off on the E3 Visa and want to change to a B-2. Are the forms you stated in your post, i-129 and i-539 still valid? Is there anything else I need to do to stay in the country?

    Thanks!
    NJ

  16. Hi NJ,
    Sorry to hear about your lay off. Yes the I-129 is the form you need to transfer your E-3 visa to the B-2 visa.
    Cj

  17. Hello there!
    First great post. I am currently finishing up a Bachelor in Commerce, and I will be graduating next month. I already have a trip planned to the US for January and I really want to find work over there. I was wondering weather I should apply for a J1 visa and then look for employment. Or weather I should try find an employer willing to sponsor me for an E3 visa. Also my other question is if I enter on the J1 visa is it possible for me to transfer to the E3 later down the track.
    Cheers

  18. Hi MD,
    Look in many ways getting a J-1 visa placement is easier than an E-3 visa b/c it tends to be more internship and lesser paid in nature and doesn’t require the employer directly to sponsor the person as is done by 3rd party organizations (see J-1 visa). It is possible to transfer from J-1 visa to the E-3 visa but bear in mind in that referenced post whether the 2 year rule would apply to you.
    Good Luck,
    Cj

  19. Hi, I am currently doing an internship on the J1 Visa and may have an opportunity for permanent employment with the same agency, requiring the E3 visa. While transfering Visas, are you still able to work in either position (intern or permanent) or do you have to stop working completely while the transfer is completed? Also, approximately how long does the whole transfer process take?
    Cheers
    Lara

  20. I am in the same position. I plan to transfer my J-1 to an E3. Am I able to continue working at the same company while it is being processed? What is the process for getting the visa stamped in my passport at an embassy outside US? I am planning to go to Canada once it’s transferred to an E3, does it take long or do they do it at the interview? Thanks for all your help.

  21. Hi Lara,
    You can continue to work under the J-1 visa as long as that hasn’t expired yet. So in other words if you do it in advance (3 months at least is best), that should give you enough time most often for visa transfer processing.
    Cj

  22. Hi Dave,
    You can continue to work under your J-1 visa legally as long as it doesn’t expire prior to your E-3 visa being approved. When you go to get an actual E-3 visa stamp you have to go through the same process as if you are getting a new E-3 visa (doesn’t matter if you have transferred internally or not).
    Cj

  23. Hi!
    Thanks for all your advice n the e3 as I get the impression not many attorneys see this as an option and would rather go down the drawn out process of the o1 or h1! I am an Aussie currently working in the states on an o1 and have been offered my dream job as the current situation isn’t working out.
    To reapply for o1 takes too long and I don’t have the patience to ride it out much longer in my current work placethe new role is much more progressive, managerial, global position
    My last place of residence was the uk for 10 years so I have no reason to go all they way back to oz to apply, all my ties are in London aside from family
    Could you suggest a way that I could transfer to an e3?
    Should I resign from my current role, re enter on the b1, apply for the e3 then head to say Canada for the interview.
    Or can I continue here on my o1 head to Canada once I have my lca approved and would I get approved or disproved on the spot?

    Also I don’t have a degree, however 15 years experience at a very high level and enough accolades and press to warrant an o1. Do you think that would be sufficient?

    Hopefully this makes sense!
    Feel free to email me if it’s easier as I guess my case is a little tricky.
    Thank you in advance for your advice!

  24. Hi Kate,
    Your best and fastest option would be seemingly to wait for your LCA and then go outside the US and apply for your the E-3 visa at a US Consulate. If you are going to a US Consulate in Canada, call the Consulate in advance to check if they are processing first time E-3 visas as heard some reports where they are not but others where no issue. Just a sanity check for you. In any case a lot of those consulates have long wait times to get an interview so you might even be quicker going to London. Because you have been previously approved for an O-1 visa, as long as your experience is relevant to your profession and the position has a bachelor’s degree minimum requirement you would seem to have as a good a case as anyone without an actual degree.
    Cj

  25. Hi, I am currently on an E3 Visa which was processed by a lawyer. I am looking to move to another company, and was wondering do I need to process another I-129 and if so, what is the process ( online application/or through the mail?>)

  26. Hello
    I have read the page but i have simple question, if I hold E3 visa, can I obtain GC ?
    My employeer told me that they are sponsering me for GC.

    Thanks
    Rez

  27. Firstly. WOW. This website is the bet out there for all things US Visa related. I have scoured your site and would love to have my specific question answered if you had time.

    I am currently on a B1 Visa and have applied to the extension. The extension is currently pending and it looks like I will have to overstay my visa whilst I await a decision. In the meantime I have been offered a job that will qualify me for an E3 visa.

    Can i apply for a change of status in the USA? Or do you recommend I return back the Australia and apply for it there?

    Will my application for an extension affect me in any way? If it is either approved or denied?

    THANKS SO MUCH IN ADVANCE as this is a pressing question in terms on time!
    Cheers.

  28. Caitlin you can transfer from the B-1 Visa to the E-3 visa within the US however the transfer application process takes approximately 3-4 months on average with getting the approved LCA and filing your I-129 and waiting for approval. You can’t work legally until final approval is received. If you followed this route while your extension for B-1 visa is still processing, that is fine and your subsequent immigration application will just supercede the prior one. You are allowed to overstay your visa/I-94 date if you have a pending application with USCIS in the US. The reality is it would be quicker to just get the approved LCA and do your application outside the US at a US Consulate. If you do leave the US while you have any pending application with USCIS like your B-1 visa extension, it nulifies the application.
    Cj

  29. Hi CJ,

    Firstly – love your website! Great tips/advice on immigration in the US.

    I have a bit of a dilemma. I have been looking to get an E3 and travelled to the US on a Visa Waiver in April 2013 for the full 90 days but exited the country for a week and then returned for another 90 days again. Unfortunately I was pulled into secondary questioning upon my re-entry into the US regarding my intentions under the visa waiver and the officer made some notes against my profile, but let me through anyway.

    I’ve since exited the country as I wasn’t able to get a sponsor but really want to return to the US to continue my search. I’m contemplating taking up study with the F1 but wanted to know whether it is possible to switch from the F1 to E3 midway through the course if I were to successfully find a job?

    My other option was to take up a short-term, non-credit course and apply for the B1/B2 visa but I’m concerned I’ll have problems with US immigration considering I have notes against my profile already and have been in the US for 6 months.

    If you have any tips/advice on which route would be ideal given my circumstances, it would be greatly appreciated! Thanks in advance 🙂

  30. Mellie congrats on your perseverance as that is usually what it takes to succeed as a foreigner finding a US employer especially the first time. The reality is (and you can read some experiences both in full posts and comments across lots of articles here) that the time it has taken you so far is normal. I would strongly recommend being on some form of US visa now like the B-1 visa as entering/re-entering the US on Visa Waiver in short time is almost always frowned upon and now you have gone through the extra scrutiny better have the “relative” safety of having a visa stamp in your passport. That doesn’t mean you won’t get scrutinized again at the border but you should have a clear and common sense reason for being in the US and generally even though it is not forbidden anywhere saying you are looking for jobs and interviewing is not ideal just because it can cause additional scrutiny. Some people who may want to study in North America may use the B-1 visa to go explore various campuses around the country and do student/graduate interviews and this would be a reason they give. You can transfer from the B-1, F-1 and J-1 visas to the E-3 visa within the US but the practical time it takes to process the transfer being 3-4 months means most people who have an E-3 sponsor and are already on another visa like those leave the US so they can get an E-3 visa more quickly at a foreign US Consulate. It is a common route to take and you can read a 3 part journey of someone who came to the US originally on a J-1 visa but then went to an E-3 visa starting here; https://visacoach.org/2010/12/03/how-to-work-in-the-us-part-1-j1-visa-early-days/.
    Cj

  31. Hi there!

    I am a designer currently living in the states and interning on the J-1. I’m planning to go back home in about 2 months and want to come back about a month later on a new visa. Due to the nature of the E-3, it does not work in favor of freelancers that move between jobs every 5-8 months. I want to file for the H1-B visa with the company I currently intern with. How long does it take to get approval of the H1-B?

    I have also done the J-1 program twice (once as an exchange student and then an intern) and have learnt that I could start the process whilst being in the US. Then I just go home to do the interview and get the final stamp of approval.

    So all in all, can I start the process whilst abroad in the states and then go home to do the interview?

  32. Annemarie the H-1B visa application period only opens on April 1 each year and if approved you can only begin work on October 1. So you would have to wait a while before you are eligible. Also the H-1B is very competitive as only 85,000 are given out each year and this past year they were all allocated within the first week of applications so you have to plan ahead with the application and also may be subject to the H-1B visa lottery if it is over subscribed. The H-1B visa is also really not meant for freelancers as only the employer on your visa application can pay you and they have to pay a wage equivalent to at least the prevailing wage for your profession and location (https://visacoach.org/2013/05/13/prevailing-wage-how-much-does-a-foreigner-need-to-be-paid/). You can transfer from the J-1 visa to the H-1B visa within the US if your J-1 visa is still valid at the time or do the interview at a US Consulate elsewhere.
    Cj

  33. Hello,
    I am currently on a J1 Student Work and Travel visa that expires in October. I have a job and an employer willing to sponsor me for the E3. If I go home for the interview at the Consulate can I put my start date on the E3 as the end of my J1 and then get approval come back and finish my J1 in America and transfer onto my E3 while in america working on my J1?
    When filling out the ETA 9035E through the department of labor what do I select for section B number 7 “basis for the visa classification supported by this application”?

    I will be continuing the same role and there are 6 options:
    a) new employment
    b) continuation of previously approved employment
    c) change in previously approved employment
    d) new concurrent employment
    e) change in employer
    f)amended petition

    Also, I am a marketing manager with a bachelor of commerce majoring in finance and marketing – is this a specialty occupation that can be considered? I can’t find it on any list.

    Also, does the prevailing wage come for the company or the average for the city the job is in?

    Thanks for your help and for this amazingly helpful site.

    Steph

  34. Steph f you are transfer from visa like the J-1 visa to the E-3 visa within the US that will be done via filing with USCIS by your employer and they will issue you an approval and a new I-94. You can’t just enter the US on on visa and then suddenly switch to another. Also once on one US visa any other previous unexpired visa would be automatically voided. Any employment on the E-3 visa coming from the J-1 visa would be new employment as working on the J-1 visa is not considered a full time professional role. Your profession and qualifications are fine and the prevailing wage read here; https://visacoach.org/2013/05/13/prevailing-wage-how-much-does-a-foreigner-need-to-be-paid/. It relates to role, level and location.
    Cj

  35. Thanks for all this helpful information! I am currently employed under the L1 visa (inter-company transfer) as an Aussie citizen, however actively interviewing at other companies within NYC. I’m wondering whether I should begin the application for a change of status from the L1 to the E3, so once I have a letter of employment (fingers crossed) I can move on this quickly? I’m already into second round interviews for two companies and they are beginning to ask, “how long would the COS take”? I want to be as transparent as possible, but also I don’t want to scare them off. Any advice as to the best way to go about this would be greatly appreciated!

    Thanks,
    Oscar

  36. Hi,
    I am currently on a E3D visa having just arrived in the US. I now have a job offer and just realised I need to apply for a EAD but this takes over 3 months! My job offer will go! Is there any way of expediting this process? Or alternatively, can I ask the company to sponsor me for an independent visa either E3 or H1B and transfer visA here in the US?

    Thanks ahead for the help! I’m really worried about my situation!

    Philippa

  37. Hi,
    My name is Muneer and I am in US ON B1/B2 status.
    As yet I haven’t benefited from any kind of job etc.

    I have been part of Multinational Company (Hewlett Packard) as a Manager for four years
    And now would like to apply for work permit E13/E1-3.
    Can I apply for status change still remains in US.

    Thanks.

  38. Hi
    I am on a H1B in the USA and want to change to a E3 and we have 3 questions
    1. What do we have to select on the I-129 part 2 no 2 and 4?
    2. Witch sections do we have to complete?
    3. What supporting documents do we have to send with it?

    Ps Love the site

  39. hello , its really an interesting web site, m currently ion USA with F1 visa, i found a sponsorship, i want to know the changing my status to E3 processing require a lawyer or i can submit the paper work by myself,?
    is it faster to apply by person to an Australian embassy here in the united states or its better to deal with the employer or the company that sponsors me should do the process?
    which way is the fastest?

  40. WOW what a wealth of information on here! Thank you for taking the time to compile it all and have it out there for us to access!

    I have a question for you and I think I know the answer based on this post but I just want to seek clarification…

    I am looking to enter the USA on on E3 visa but am wanting to know is it possible to then change status if I was to marry my partner who is an american citizen?

    Thanks so much

  41. Do you know if the process to change status from an L2 to an E3 is the same as an L1 to an E3?

    Currently an L2 dependent on my wife’s L1 but wanting to switch to E3 to allow her to search for an alternate job without having to find someone to take over her visa.

  42. hi

    I am currently on tourist visa, E-3/new job starts within the month.

    E-3 was issued in Australia. Do I have to travel back to Australia and enter on a flight from Aus to trigger E-3, or can I leave from US to CAN and return immediately?

    This is my first E-3 visa after four years on F1.

    Cheers

  43. Hi

    I was on J1 VISA and I am now on O1 VISA. My wife is on O3 dependent VISA. We are subjected to 2 year home residence requirement. we do not have a waiver for that. Can my wife get an H1B VISA without waiver. Someone told me that its possible to change from O3 to H1 without waiver but not from J2 to H1.

    Thanks

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