emartin

You cannot apply anywhere other than your home country. You are subject to Section 222(g) of the Immigration and Nationality Act because you overstayed your I-94. This voids your visa and requires you to return to your country of nationality for a new visa.

nani

I tend to disagree with Ian on one thing: "Having an application in process does not give any status".

There are couple of things to note here:

If you applied for whatever new status (E3 with new employer, F1, B1, etc) PRIOR to going out of status i.e. while you were still working and your visa was still valid then you will have 180 days. Even if you do not receive an adjudication on your case within 180 days - you STILL have to leave the US in order to avoid the ban. If your request to change status is denied before 180 days then you still need to leave the US.

The point however is that most people who apply for change of status have either lost their job and were not given much notice so there is no way they can leave within the 10 day period required by law. So in order to keep themselves 'in legal status' rather than being 'out of status', they have to file for a change of status (most file for visitor or student visa). This buys them some legal time to pack up/sell whatever they have and leave the US so that they do not jeopardize their chances of getting a visa in the future if they wish to return.

Some people do find new jobs during that waiting period and can apply for another change of status to work visa with new employer. IF approved before the COS to visitor or student visa then you can abandon the original filing. The important thing to remember is that you need to show that you remained in legal status while in the US. You cannot be out of status for even a single day in the US to avoid any future problems.

Now in your case, unfortunately I have to agree with the others that you have been out of status for some time now. You should seek legal advise asap to know your options. Good luck.

docnetau

Err... really? Because that's not how it's supposed to work!

An E-3 visa is valid until it's expiry, and no later. Border immigration should never issue you with an I-94 with an expiry date later than the date on the E-3. You can extend your stay, but not by re-entering the country...

I've exited and re-entered the US close to 20 times on E-3 visas, and every time they put the same expiry on the passport/I-94 as is on the visa.

So you're no longer working (and I presume you're been no longer working for more than 10 days, which would mean your E-3 status would be invalid), you're in the country on an E-3 that expired over 2 years ago, and on an I-94 which expired 5 months ago?

You've really got yourself into a bad state here. Overstaying a Visa is something that will almost always cause issues for future Visas. If you go to Toronto there's a good chance they will refuse your visa application. At that stage you will not legally be allowed to re-enter the US - even under the Visa Waver Program (as you have been refused a visa). I also wouldn't be surprised if Canadian immigration refused to let you into Canada due to the high possibility that you will get stuck there...

augigi

Where on earth did you get that information? My I-94 has never been the same as the visa expiration date. Initially, it was the same as the LCA expiration date (earlier than visa expiration date..), then each time I re-entered the country, they added 2 years on.

Border officers can choose whatever date they want to stamp. That doesn't mean that it's not still your responsibility to maintain your visa conditions or stop working when the visa expires.

docnetau

Then clearly multiple errors have been made on your account.

Firstly, the Visa expiry date should be no later than the LCA expiry date. This is clearly documented in multiple places, including http://canberra.usembassy.gov/consul...as/niv/e3.html
If you visa expiry date is later than your LCA expiry date, then someone has made an error.

As for the I-94 date, I've seen the relevant pages in the USCIS handbook that the officers at the border use, and it clearly states that the I-94 should expire on the same date as the Visa. I've seen this when entering the country and hitting immigration officers who didn't know what an E-3 was, so they pulled out their guide to check.

According to the stamps in my passport I've entered the US 21 times since I got my first E-3, and every time they have put the Visa expiry date on the I-94, not something later.

saran

You are wrong <<docnetau>>

Initially my E3 visa was issue on 24th June 2007 and the expiry date on my E3 visa was 23rd June 2009.

But I entered US on 10th May 2008 (almost 1 year after E3 was issued) and the I-94 was issued to me for 2 years from the date I entered US, ie until 10th May 2010.

But I have seen some Immigration officers issue I-94 for E3 Visas only until the expiry of the actual E3 visa.

Not sure which is the right way of doing!!

augigi

But by the very nature of the application process, you have to get the LCA, then go have your appointment to get the visa issued. The visa is valid from the date of issuance for the next 2 years. Generally it's issued at least some days, to some weeks after the LCA is approved.

Anyhow, somewhat semantics since you can only work until your LCA expires in any case. Length of stay on I-94 is still up to the POE officer.

augigi

Oops double posting.

Just got back from the Melbourne consulate for my new E3 appt (same employer, 2 yrs are up). I had 8:15 appt, 5th in line. They took first 4 up then let the next lot in, of which I was first so #005. Up to first window to hand paperwork over - express post satchel, Australia Post receipt, application confirmation, LCA. The guy explained that since I am continuing with the same employer, I am getting an "E3-R" visa (R = returning), this just means that it's not subject to the cap. Sit down again. Get called up to the second window and the man asked where I work, what I do, and what my qualifications are. Then took fingerprints and said the visa was approved and he would send it out.

In at 08:15 and out at 09:00.

ian-mstm

Easy peasy lemon squeezy!

Ian

E3only

Are you going to be in Melb for long and any plans to travel to Sydney?

augigi

Just came back for a few weeks but my mother is terminally ill and they think only has several weeks left so I am going to stay here for now. Will probably be going to Sydney later this month to catch up with some friends, why?

augigi

Passport arrived back first thing this morning! So left it there 0900 yesterday and got it back 0900 today - quick work.

E3only

thanks for the update mate..sent you a PM

sydney-sf

Hi all,

I'm in the US on an E3. I would like to change my position (take a new offer) with the same employer. Do you know if I need to change anything about my E3 or get it approved by USCIS or I can take the new position with the same visa?

Thanks,

sydney lover

emartin

Your employer should file an amended petition if there has been a "material change" in the terms and conditions of employment. That's somewhat subjective, but if it is a completely new position, I recommend an amendment to be safe.