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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28301
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Judith, I have an interesting situation I am on an

Customer Question

Hi Judith,
I have an interesting situation
I am on an E3 Visa. I have transferred from my original E3 employer to my new employer 6 weeks ago.
I have just been informed by my new employer they didn't in fact submit my LCA OR I-129.
If they decide to dismiss me because it's to hard to fill out the paper work, is that legal?
Will they get in trouble for paying me for the 6 weeks without submitting the right paperwork?
Who's responsibility is it to submit the LCA and I-129?
Can they still submit it even though it's 6 weeks too late ?
Thanks in advance!
Jay
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.
Hello JayUnfortunately, you are here illegally now. Unlike an H1B you cannot change employers until your I-129 petition to change employers is approved.If you leave your original E3 employer before that you are here illegally The burden is on you to remain employed by your approved E3 employer or depart the US unless a new I-129 has been approved or you go out and get a new E3 I-94 based on the new LCA. I have just been informed by my new employer they didn't in fact submit my LCA OR I-129. If they decide to dismiss me because it's to hard to fill out the paper work, is that legal?Yes, no employer is required to file an immigration petition for you. If you have an agreement in writing that they will do so and they fail to follow through on the agreement you may have a breach of contract remedy available to you and you could sue them for that. But that does not have anything to do with immigration law. Will they get in trouble for paying me for the 6 weeks without submitting the right paperwork?They could be find by the Dept of Labor for a paper violation for failing to file the LCA and with USCIS for employing you unlawfully.Generally, unless an employer has a history of such conduct the authorities will go after them. If this is a one time event, usually not. They put their resources into catching the "big fish".But you are the one most likely to be sanctioned for leaving your approved E3 employer and not departing the US for a new E3 because you are easier to catch when you go to apply for a new visa or when you go through a port of entry where Customs may well take the time to investigate you by sending you back to secondary inspection while they contact the original E3 petitioner to question them when your employment with them terminated.Who's responsibility is it to submit the LCA and I-129?The new employer is responsible but you are not allowed to commence working for the new employer until the new I-129 is approved.Can they still submit it even though it's 6 weeks too late ? Yes, but that does not fix you going out of status and being here unlawfully for 6 weeks. You would still have to leave the US and come back in with a new I-94 making you eligible t work for the new employer.My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Understand, it is my job to be honest and truthful about the law and sometimes the law does not give you the solution or options you want. Kindly give me a positive rating when you are done. If you feel I earned a BONUS, I am grateful. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.Judith
Customer: replied 1 year ago.
What if my previous employer has not cancelled my employment yet ( mainly because they don't know how)?Is there any legal recourse for me considering they are the ones that hired me with full knowledge of my situation and forgot to process the paper work?If they file the right documents now, will everything be okay? (Considering my previous employer never terminated me)
Expert:  Judith replied 1 year ago.
You must have remained on the approved employer's payroll or you are out of status. They have no obligation to withdraw their the approval of your E3.Your legal recourse may be in contract law, as I said, not in immigration law. You are clearly out of status under all principles of immigration law.Judith