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

  1. Hi,

    I was in US on J2 visa (my husband was on J1). We just changed our status from J1/J2 to H1/H4 because of 212e (2 year home requirement). My husband is going to fulfill that rule by working in an underserved area for 3 years (Conrad 30 visa waiver program).

    My question is since now I am on H4 visa, can I change to E3 visa (I am an Australian citizen)?

    Thanks,
    AK

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