Are you on a H-1B Visa or E-3 Visa and now Laid Off?

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I wrote earlier in February about this very issue and the main ideas I had to help you find new employment so the posts I recommend reading are;

– Laid Off on an E-3 or H-1B Visa where I talk about the situation and idea where you can get your current employer to help and also an option in Canada
– Extending, Renewing or Changing Employers on your E-3 Visa this is also  helpul to H-1B holders or applicants as the process is very similar
– Information about the Top 100 Companies that sponsored H-1B visas last year where we discuss how this may help you and the genesis of the list which we made FREE for you
– The Top 200 List of US Visa Employers Last Year is a raw list of the companies that is beneficial to E-3 visa applicants as much as H-1B and even J-1.

Now I have received a lot of emails in recent times about;
How long people have?
How can they extend their time to look for a job?
Is the transfer process easy and not too costly?
Can you transfer to B1/B2 status to allow you more time to find a position?
Do I have access to any unemployment benefits since I pay Social Security/Payroll/FICA Taxes?
Can I work while the transfer process is underway?

I will try and document the answers to these questions briefly on one page, although a lot of these answers are in more detail elsewhere in the blog in other posts and you can go the All Posts List which documents all entries and visa information by title.

1. How long do I have?
Technically you only have 10 days to find a new employer once your current employer notifies USCIS of your termination date. We explain in the above post more fully how you can ask you employer to delay this notification to give you more time.
NB: Over time through guidance and enforcement changes, and post the financial crisis, the e-3 visa rules continued to more resemble the h-1b visa rules. So the 10 days have become more like 60 days. However always be cautious as you never know what might be enforced especially in the post 2016-era of US immigration.

2. How can you extend your time to find a job?
Will this really follows on from question 1, so the delay in notification is one option. Leaving and re-entering the US on the visa-waiver program is another option. Transferring to a B1/B2 visa or even another category (although you have to meet their individual requirements) can also potentially extend your time.

3. Is the transfer process easy and not too costly?
It certainly could be easier, I mention in the above linked post the entire process and forms involved. Eassentially it involves getting a new LCA form and a filing form for transfer of employer to USCIS which I think costs around $300 although this constantly changes. It can be relatively straightforward in what you do but it can be a long process.
Of course if travel is involed if you plan to get a new visa outside the country this of course will amplify costs.

4. Can you transfer to B1/B2 status to allow you more time to find an employer?
You certainly can trasnfer to B1/B2 if you do this application to USCIS. Visapro states USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status within 10 days after you are laid off.

5. Do you have access to any unemployment benefits as you pay Social Security taxes?
No you don’t in any shape or form if you are on any non-immigrant visa. Yes this is completely unfair given you are forced to pay these taxes just like a US worker but you have no claim to any benefits.

6. Can I work while the transfer process is underway?
For H-1B visa holders you can given the application has been filed and you have your approved LCA from the Department of Labor. However your transfer application could still be denied potentially by the USCIS.

For E-3 visa holders the answer is a little more strange as it is largely undocumented. So some USCIS officers will say the rules are the same as H-1B as they are for most other things when not fully documented as seems to be the general direction of the visa. However other officers say this is not the case and you have to wait for your transfer. This combined with the transfer visa application cost has caused many of E-3 to just go to Canada and apply for a new visa with their new employer instead.

Good luck if this is your predicament…I wish you all the best 🙂

CJ

**look I should say again I am not a lawyer but I answer these questions to the best of my ability having gone through the visa process many times and having shared experiences with many others so I want to save you guys as much money as I can with potential legal costs. Some of the policies change a lot and I try to keep us as much as I can but I do miss a few changes.

Extending, Renewing or Changing Employers on Your E3 Visa

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The E-3 Visa is interesting in that so much of it is undocumented fully related to change of employers, switch to permanent residency, the renewable indefinitely clause, being and working in the country legally while transfer is occurring with USCIS, etc.

However a common question we get asked is the process of renewal or extension of the E-3 Visa. To be honest, practically it seems like most people whether extended, renewing or changing employers just file a new application and get a new E-3 visa overseas. Many do it in Canada as it is close by.

The main reason being that it is more costly to apply for extension of your E-3 visa and the processing times for extension and change of employer that have to be done with USCIS and can potentially take many months. Generally it seems to take 4-8 weeks but even so that can present problems with your status in the meantime if you are not still employed.

Additionally if you have extended your visa or changed employers within the US and then leave the US to travel, you will have to go through the application for a new visa anyway to re-enter the country and thus pay all the consular costs. So it seems pointless given the short duration of the visa for 2 years to pay costs for extension only to have to pay the new visa application costs again.

There is no limit on the number of years an Australian national may hold E-3 status. Initial admission as an E-3 can be up to two years; extensions of stay are granted in up to two-year periods

E-3 beneficiaries may obtain a new period of E-3 admission at a U.S. consulate overseas, or may extend E-3 status by having their employer file an extension request with USCIS. Extension requests may be filed as early as six months before the current stay expires, and should be filed as far in advance of the E-3 expiration as possible.

As we said it is a grey area as to people E-3 status are permitted to continue working while the E-3 extension or change of employer application is processing if the current visa is expired.

Many at USCIS will tell you it works like H-1B which means you can as that is what visa the E-3 was modelled on and uses many of its terms and conditions except when specified otherwise. However others telly because it is not specifically writen anywhere this is not the case.

So your employer prepares a new Form ETA 9035 Labor Condition Application (LCA) if you are just going to do a new E-3 visa via a renewal or change employers and get a new visa.

If extending the stay through USCIS, your employer has to prepare a new Form ETA 9035 Labor Condition Application (LCA) and Form I-129. There are filing fees for the I-129 form.

USCIS sends Form I-797 Approval Notice to the employer or attorney of record as notification of the decision on the extension request.

I hope this best answers this weird part of the E-3 visa terms of operation and I wish you well in either your;
– renewal of your E-3 Visa
– extension of your E-3 Visa
– change of employer of your E-3 Visa

CJ

SPECIAL EDIT: FIND OUT THE COMPANIES THAT YOU PROBABLY SHOULD NOT APPLY TO THIS YEAR BECAUSE IT WILL BE ALMOST IMPOSSIBLE FOR THEM TO HIRE FOREIGNERS ON E-3 VISAS