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Ask Guillermo J. Senmartin, Esq. Your Own...
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 106250
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I am an Australian working in the USA on an E-3 visa. Once

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I am an Australian working in the USA on an E-3 visa. Once I leave my current role I have 10 days to leave the correct correct? is there anyway to change my visa status back to the visa waiver (3 months) to allow me to continue to search for a job?
Hello again. Unfortunately, you would need to leave immediately. The law doesn't say you have 10 days, but they usually don't make a big deal if you leave that quickly. But you cannot change status to Visa Waiver from inside of the U.S. and you cannot change status to anything else once you are out of status. So you would have to file an I-539 change of status to B-2 tourist status BEFORE you leave your job.
Also, the later that you leave the U.S. after you leave the job, the harder it will be to convince an immigration officer that you will not violate your status again. And if you stay 180 days or more, you would have a 3 year penalty that you cannot come back without a very hard to get waiver. And if you overstay 1 year or more, it is 10 year penalty that you cannot come back without a waiver. Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
Customer: replied 3 years ago.

Where can I go to change my status? Can I go to the airport? that's where I did my E3 renewal docs.

No. That's not how it works. So you have already left employment?
Customer: replied 3 years ago.

Nope, but I'm planning to leave and look for a new job in another city.


 


Does that mean I have to leave my job, go back to Australia immediately, then come back on the visa waiver program?

Yes, you could do that, OR you could file an I-539 change of status petition to change status to B-2 tourist status BEFORE you leave your job, then while that is pending and/or approved, if you find another job, you can file for another change of status to a new E-3 for example without having to leave the U.S. But each step has to be approved or you would have to leave the U.S. and apply to come back in. Please do not forget to rate me positively. Since I am not paid a salary, it is the only way that I get paid. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. Thank you.
Guillermo J. Senmartin, Esq. and other Immigration Law Specialists are ready to help you
Customer: replied 3 years ago.

How would I go about filing that tourist partition?


 


Additionally, to complicate things I am currently attending a part time program at Babson college. I have contacted the college and they do not issue visa's for part time students (makes sense...why would an international student study part-time). But how does this play out with the whole tourist visa? Can I still attend the college? I literally have one subject remaining.

You would just file the I-539 which is found here:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=94d12c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD



And no, you would not be able to attend school when on a B-2 if it is for credit. You can take a cooking class or something that is not for credit.
Guillermo J. Senmartin, Esq. and other Immigration Law Specialists are ready to help you
Customer: replied 3 years ago.

Since I'm on an E-3, how do I submit that partition? and then how long does that allow me to stay in the USA?

You just follow the instructions, file it where they instruct you to, if it is approved, upon approval you change to B-2 status and it gives you 6 months. You can ask to extend it by filing the same form but marking extension of status instead of change of status and the maximum time you can get is 6 more months.
Customer: replied 3 years ago.

I thought the B-2 status was for business visitors?

It's B-1 business and B-2 visitor and they are usually given together in the form of a B1/B2.
Customer: replied 3 years ago.

So, what I were register an Australian business and then work and invoice everything against the Australian company that I do on my own time (when I get home from working for my US employer) but not withdraw any funds from the Australian company...is that legal (i.e. All funds remain in the company as retained earnings and are not paid out)? what are the tax implications of that?

That's not going to work. You cannot have a side job like that. You would write a book in your spare time and then receive royalties on the sales, but you cannot start up a company and live in the U.S. unless MAYBE all invoices and funds and business transactions are from non-U.S. sources.
Customer: replied 3 years ago.

Even if I had a full time job here in the states?

Yes. The whole idea is that you cannot create unregulated competition in the U.S. market place or take away a potential job from a U.S. worker.
Customer: replied 3 years ago.

But just to be dead clear here because the answers I received from my Australian attorney was a little different.


 


If I start a regular online business, register it in Australia, work for it in the evenings (something that my E-3 visa employment contract states I can do), and I invoice all revenues against the Australian company, pay Australian taxes, is this allowed? and if not why?

Of course your Australian attorney says that because he is not licensed in the U.S. nor experienced in U.S. law (I assume). You are living in the U.S. That's what makes ALL the difference. I stated this already....these regulations exist to protect U.S. workers and U.S. companies against foreign labor and foreign competition. When you grasp that concept, then you will understand. If you are living in the U.S., you are subject to U.S. laws. Unless you can absolutely guarantee (and can prove it) that your actions will not include U.S. clients and U.S. income, you would be at risk. And believe me, even if it is a gray area (which I do not think it is), gray areas are being decided against the foreigner.
Customer: replied 3 years ago.

Okay. I just wanted to politely confirm the details.

No problem. I'll be here when you need me.
Customer: replied 3 years ago.

I thank you for your answers. As an entrepreneur living in the USA, is there anyway that you know of that I can create a business legally? I'm nearing the completion of my MBA at Babson College and have continuously thought about asking investors to invest in business models I have created. If I were to do so is there any path forward for me to legally run that business? e.g. If an angel investor were to invest $300,000, is there any path forward where I could run that company legally? (my apologies if I keep going around in circles, its a life long dream to start a business in the USA and I just want to make sure there are no options before I put this to rest).


 


Also, concerning the path to a green card, I have an undergraduate degree in Electrical Engineering and will have an MBA from Babson College (USA) come December 6, if my employer were to sponsor a green card:


 


What green card category would that be? E-2 or E-3?


 


Can I apply for a green card while on my Australian Specialty Visa (E3)? or do I have to change to a H1B? if that is the case isn't it impossible to obtain one of those because they're in such high demand?


 


Is there a waiting line for green cards for Australians? I know there is a long waiting list for Indians.


 


How long does the green card process take?


 


Can I start a business if I have the green card in hand?

For the E-2, you have to control the investment. So it can be a loan that you are responsible for, but it has to be your money to control. For the E-3, you have to have a job offer in a specialty category. So a company could hire you. Keep in mind that these regulations exist to protect the U.S. worker against foreign labor such as yourself. The U.S. takes care of their own first. I hope you understand. It also means that the regulations also discourage foreign competition in the U.S. marketplace at least without regulation. For the E-3, there is no waiting line.

If you mean the EB-2 and EB-3, there is a long waiting line for Indians, yes. There is no way around that and no way to jump forward in that line, not even in an emergency.

For a green card through investment (EB-5), you need $1,000,000 and to create at least 10 jobs for U.S. workers or perhaps $500,000 in a rural or high unemployment area as designated by the U.S. government.

Customer: replied 3 years ago.

Sorry my mistake, the waiting times for the EB-2 visa for Australians, is that long?

About 5 years. Here is the link:

http://travel.state.gov/visa/bulletin/bulletin_6050.html


Sorry. It's just that too many of your countrymen have applied under the same category and it has created a long line. And it goes by country of birth, not country of citizenship.
Customer: replied 3 years ago.

I'm an Australian by birth and citizenship, the waiting lines are still 5 years?

Then I do not know why you mentioned Indian. The there is no waiting line for Australians in EB-2 category, BUT to qualify for the EB-2 category you not only have to have a masters degree or equivalent, but you have to have a job offer that requires a masters degree. If the job offer only requires a bachelors degree, then that will not work.
Customer: replied 3 years ago.

Okay no problem. I mentioned India because I have several Indian friends who have described the long waiting lines but I don't have any Australian friends completing the process.


 


If there is no waiting line how long does the green card process take? and can I apply through my employer when I'm on an E-3 Australian temporary work visa?

Your employer would petition for you if you qualify for that category. Most people don't. But if you do, it should take probably around a year to process and yes, you should be on some other legal status while waiting approval. Here is a link if you want to read more:


http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=816a83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=816a83453d4a3210VgnVCM100000b92ca60aRCRD