Tag Archives: canadian TN visa

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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How To Explain The E3 Visa To A Potential Employer?

If you are new to the world of the E3 visa or only just beginning to embark upon the idea of living and working in the US and finding a job then this question may puzzle you a little.

As you will no doubt find soon enough and as both all those who are well into their US job search know as well as the lucky ones who have successfully found and been sponsored for a position, it is a question you will have to address at some point if you want success.

I have discussed in numerous other posts and will continue to again talk about the challenges of finding a position all visa holders but the Australian E3 aspirants do have a unique case. To note the E3 Visa only applies to Australian Citizens as a follow on part of the Australian-United States Free Trade Agreement (AUSFTA).
Your challenges in finding a position is not only to find an employer willing to hire you but one willing to sponsor you as well. As in the US System you must have a job lined up prior to arriving in the US unlike many other working visas for other countries.

Now the Australian looking for sponsorship under the E3 class is no different in this regard, except that they do have many advantages and a couple of challenges compared to the other visa class aspirants. The good news is that the challenges can all be addressed by you simply and the benefits are very helpful to employers compared to other visas.

BENEFITS:

  • Potentially no cost to the employer as the only form they have to file is a Labor Condition Application (LCA) on form 9035/9035E to the Department of Labor (DOL). It is no cost to file this form and approval can be received very quickly in a matter of a few days or less. This form is also very short and simple to fill out
  • This application can be made at any time of the year and your able to commence work at any time of the year
  • Your visa rolls potentially rollsover indefinitely** With the H1B visa, the costs are heavy for filing a petition, you can only do it at certain times of the year and you can only commence work at a certain time each year.

CHALLENGES:

  • The E3 is virtually unknown by employers, many Immigration attorneys and even people who work for the Immigration Departments in the US
  • Employers may assume it is like H1B and thus costly and with many conditions attached to filing

As you can maybe gather from reading the challenges, they could be overcome easily if you have a ready and confident explanation at hand.

There are many ways to approach this as well as times to bring it up as I have discussed in other posts. I think I will leave the a long discussion into the timing issue for other posts as it a talking point unto itself.
Many people believe you can bring this up later in the Interview process and be successful by not eliminating many employers at the beginning. I am of the school of belief and practiced the approach of being upfront with a short paragraph in my cover letter so it was there upfront. I did this so I could not be accused of hiding anything nor cause heartache at the end  by being disqualified after going through a long process just because someone was reluctant to sponsor. (in future posts I will discuss the cover letter and resume for the US employer audience)

So leaving aside when you tell a potential employer, two of the most common approaches candidates use are to compare to 2 other visas, to highlight the positives and counter the challenges I raised above.

More employers are aware much more of the general H1B visa as well as the TN visa which is available for Canadian and Mexican professionals as part of NAFTA (North American Free Trade Agreement). It is the Canadian part of this visa I will focus on.

So when you are at the point of explaining sponsorship and the E3 visa take into account the employer will probably have pre-conceived notions about difficulty, long times and excessive cost or they may be completely clueless.

Assuming they are now sold on you as a candidate, mention that the E3 visa works a lot like the TN visa for Canadians in that there is no cost to the employer, it can be filed and approved quickly at any time (including online here) and is renewable indefinitely. Thus it works practically exactly like the H1B visa just without all the regulations, fixed dates and excessive costs. If the employer is truly sold on you already, this is usually music to their ears.

Point them to online and government resources if the are unsure but it tends not to be a difficult sell if they want you as a candidate. The challenge of making them love you as candidate of course where you need to shine too 🙂

As a side note for Form 9035 in you send via regular mail or 9035E if you file electronically, you should note Form ETA 9035, at the top “E-3 – Australia – to be processed”, or mark ETA 9035E for E-3 Australia. Either form is acceptable.

Good Luck and  I look forward to your comments as always….

CJ



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