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Transfer to an H1B or E3 Work Visa From…

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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

Other Types of Work Visas

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We focus a lot on the H1B, E3, J1, F1, H2B and L1 visas (as well as spousal/dependent equivalents) in this blog but today I will briefly touch on a couple of them being the Employment Based Permant residency EB visas and the O1 visa.

So firstly the O1 visa;
The O visa was created for individuals of extraordinary abilities that would be of great benefit to the US.
So for example this is often used by famous entertainers, actors, athletes when they are competing in tournaments, etc. It is also used by people distinguished in other fields like business, science and education.

To qualify for this visa you must still be sponsored by a US employer or agent but also demonstrate your recognized extraordinary abilities. If you are a famous author you could do this by your book sales, a scientist could do this from world awards they have won, an athlete can point to their world ranking, etc.

Essentially you have to be in top 1-2% in your chosen profession in the world. So of course very few qualify for this visa category. The O2 visa applies to support people specifically for entertainers and athletes. So this could be crew members, agents, etc. whose primary job is working for the O1 holder in some capacity.

The O3 visa is a dependent visa for O1 holders so spouses and qualifying children would get this visa.

The EB Visas (this is essentially a green card)
You can  occasionally apply for these visas directly before being on any other visa but there is a very limited supply. Generally this is the perment residency applied for on your behalf by your employer. You have to wait for a visa number to become available and this can take many years depending on your category and country of residence.
More often than not this will happen after an employer is satisfied with you on your H1B, L1 or E3 visa.

There are five categories of employment based immigration:

  • First Preference (EB-1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
  • Second Preference (EB-2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
  • Third Preference (EB-3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
  • Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
  • Fifth Preference (EB-5 Investment/Employment Creation) If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise,
  • There is also Schedule A Workers whom are Health care workers and aliens of exceptional ability.

I hope this help provides some context as to other types of visa.

Till Next Time….

CJ