Tag Archives: h-1b visa

H-1B & E-3 Visa Holders Applying at US Consulates in Canada

In the last 12 months we have been inundated with questions from rightly apprehensive foreigners who seemingly have secured their dream to live and work in the US only to be faced with a new sense of fear, actually getting the US work visa itself.

If you are in the US as either legally as a tourist or another visa like the F-1 student visa, that would be the logical time to apply to US employers, attend interviews and hopefully secure a position. However because of the absurdity of the US Immigration system, this means you either initially have to leave the US to get a visa stamp in your passport at a US Consulate before you can start working for your new US employer. Alternatively in certain cases if you are transferring from an unexpired non-immigrant visa or status at the time of application (so not tourist visa waiver ESTA) you can potentially start employment, however as soon as you travel outside the US for work or pleasure you have to attend a US Consulate as well for an interview to get a visa stamp.

The reason why the situations above are absurd is because in any prior non-immigrant visa case the person would have already attended a US Consulate to get their initial US visa. So they largely go through the same process again just this time with the assessment of the US employer and job. Given that the US employer and job have already been assessed as part of the process by the Department of Labor in all cases and by the USCIS (United States Custom & Immigration Service) as well in all work visa transfer cases and any H-1B visa case, it is just redundant waste and further cost to foreigners, US employers and ultimately the US economy as a whole.

This whole process can take weeks and sometimes many months and cost thousands of dollars in application fees, legal fees, travel costs and that doesn’t factor in lost earning to the employee or the business. Given the H-1B visa period always commences on or after October 1 in any given year this tends to produce high demand for interview slots between May and October each year when the application begin to be approved after the annual April 1 filing opening.

In the case of E-3 visas where the application season is year round and the demand is nowhere near as high the same issues that arise for the H-1B work visa applicants and their employers also apply. However additional “guidelines” around which US Consulates are applicable depending on whether its a new visa (E-3 visa) or renewal version of the visa (E-3R) add further confusion.

firsttimee3visa

The above guideline posted on the US Embassy official website for Australia causes more angst than any other for people who have actually secured an E-3 visa. Given the cost for a round trip to Australia at the best of times might be around $2,000 when booked in advance, it is not a cheap option to go back just to get a visa. Often as well getting an appointment may take many weeks at one of the 3 Australian located US Consulates in Perth, Sydney or Melbourne.

Often people would love to go to Canada and namely a place like Toronto. Below is a further cause of angst on the official US Consulate website for Toronto regarding the E-3 visa.

Q. I am an Australian citizen applying for an E3 visa. What do I need to do?

A. Applicants for E-3 visas are seen in Toronto in the same manner as all other non E-visa applicants, by appointment made online at http://canada.usvisa-info.com/ or by calling 647-955-3736(calling from Toronto area), 1-877-341-2441 (calling from elsewhere in Canada or from the U.S). Information about E-3 visas is available at U.S. Embassy in Canberra. Appointments are booked many weeks in advance. There is no special consideration given to E-3 visa applicants.

We urge all visa applicants who are not landed immigrants or long-term residents of Canada to apply at a U.S. Embassy or Consulate in their home country. Applicants who come to Toronto from the U.S., having entered the U.S. as a visitor, are likely to be found ineligible here and unable to return to the U.S. even as a visitor.

The above statement contradicts itself by saying it will process E-3 visas as normal in the first paragraph and then warning against doing it in the second paragraph unless long term residents of Canada (or potentially non-immigrant visa holders in the US as opposed to just tourists). It should be noted none of the above two US Consulate guidelines are given for H-1B visa applicants.

The bottom line is we have got a lot of feedback on this from people over the years who have actually gone through the first time visa process and the visa renewals, talked to the largely unhelpful customer service at the USCIS, Department of State and US Consulates themselves as well a lot of first hand knowledge. These are the best guidelines we can give (I stress these are definitely guidelines because there are no facts around this and people have had conflicting experiences and it seems like facts change a lot)

  • First time and renewal H-1B visa holders can apply at any US Consulate around the world. If you are a first time H-1B visa applicant with a foreign degree to the US or the country you are applying within, then would highly recommend getting your degrees assessed as equivalent to a US degree by an organization (many Universities or affiliated organizations do this service for a fee and many US employers who employ legal counsel do this as part of the process)
  • First time E-3 visa holders who have never held a US non-immigrant visa like F-1, J-1, H-1B, etc. are only in the US on the ESTA visa waiver, I would highly recommend doing your application in Australia or at the very least not in Canada.
  • First time E-3 visa holders if you came on the non-immigrant B-1/B-2 visa but as a tourist, I would highly recommend the above as well
  • If you are a first time E-3 visa holder and have been on a non-immigrant visa, I would ideally avoid Canada and use Mexico, the Bahamas, Dominican Republic or UK if you want somewhere closer. However if you are going to do Canada maybe avoid Toronto (& Montreal) and do it in Vancouver or Halifax
  • Renewal E-3 visa cases seem to be fine at any US Consulate including Canadian ones
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Leaving your Job on your H-1B or E-3 Visa

Despite contrary opinion you can leave your job when you are on a H-1B visa or E-3 visa, it is however a difficult route especially if you are not aware of the immigration rules that govern leaving and changing employers.

As it stands now the rules are very strict when leaving an employer and remaining on the same visa. Specifically that you can be no longer than 10 days without an employer. This can be a little bit of a grey area as sometimes in the case of either being laid off as a foreigner or naturally leaving your job, the last portion of your official time at a company may actually be PTO (paid time off or vacation) or some form of long term official sanctioned leave that may be paid or unpaid. So in any of these cases it should still be the case that the 10 day countdown only begins once your employed connection with the company ceases. This differs from so called severance pay which may be paid in lump sum or increments but would at or after your final official date of employment and thus doesn’t impact the 10 day countdown.

The four most common reasons for leaving your US employer while on a non-immigrant visa is;

1. To return to your home country or other non US destination
2. To change employers within the US
3. A forced change to leave US employer either via lay-off, termination/firing or leaving due to bad circumstances
4. Change to another visa like the F-1 visa for studying or being eligible for a Green Card allowing flexibility of employment

Leaving the US
If you are leaving your job and planning to leave the US the biggest things to note are ensuring you continue to file a tax return with the IRS the following year and any other year you are earning US income. Additionally ensuring you don’t have any other outstanding debt owing is also ideal especially if you plan to return to the US or in the future want to achieve a status like Permanent Residency and US Citizenship.

Changing Employers
We have written extensively on the issues, process and timing of changing employers on either your H-1B visa or E-3 visa and the differences between the two statuses. The biggest thing to note is the concept of Portability and the fact that it explicitly is stated and applies in the case of the H-1B visa and allows someone to commence employment at a new employer even if the new petition is not approved and is just being processed. In the case of the E-3 visa, some people have received advice that the same process applies for the E-3 visa, however it is not a written statute so many people leave the country to get a new E-3 visa as a quicker route than the approval process of changing employers within the US.

Forced Departure From Employer
If you are laid off from your employer, there is no special rules that the US employer must follow for you as a foreigner so other than paying you severance at their discretion, extending your official final date and/or helping you in your job search, the 10 day rule still applies from your final date. However if they do lay you off, they are obligated to pay for your return trip to your home country and do it for a trip that does not violate your visa status rules. If you are terminated with or without cause it becomes a grey area as to whether they are obligated to pay this return fare, however they really should. Ultimately if you are terminated without cause or have been forced to leave b/c of unlawful work conditions, the US workplace rules still apply to you as a foreigner and you can report your employer company and specific people to the Department of Labor and USCIS. However unless it is a criminal case this won’t in and of itself help your ongoing visa status.

Changing Visa or US Status
If you are changing to a status whereby you are studying in the US or achieving a Green Card either via the Diversity Visa Lottery, the employer sponsored EB-1, EB-2 or EB-3 permanent visas or by marrying a US Citizen or Permanent Resident, then you are bound by the new terms of that status as you have that approval. Therefore you can’t operate under the new terms of that visa or permanent residency  until you receive approval to do so. There are various change of status forms and process and tasks that apply in each case including things like the I-129 form, I-485 form, medical visits, etc. depending on what you are changing too.

The proposed US Immigration Reform of 2013 proposes to change a lot of these things at least for the H-1B visa by increasing the time to change to 60 days and increasing the number of available Green Cards and pathway to them. However ultimately regardless of the passage of that bill which is still tenuous as of this writing, it is important for all foreigners working in the US to understand the implications of leaving your employer.

Cj

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