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Possibility to change from an E-2 to H1B

MEMORANDUM

Subject: Possibility to change from an E-2 to H1B

Question: Whether an alien can change status from an E-2 Visa to an H1B.

Short Answer: Yes, a non-immigrant E-2 Visa holder may Change Status to an H1B Visa.

Discussion: A non-immigrant present in the United States on a valid non-immigrant visa may change his status by filing the appropriate documents with United States Citizenship and Immigration Services (USCIS). A person in the United States under an E visa is not precluded from applying to another non-immigrant category and may do so by filing an I-129 along with all necessary evidence and change his status. In addition to the appropriate paperwork, a non-immigrant wishing to change status to that of H1B must meet the requirements.

In very general terms, aliens who seek to apply for H1B must show that they are intending to enter the United States to engage in a “specialty occupation" for a determined employer. A specialty occupation is one in which a bachelors or higher degree in a specific field is the entry-level requirement. For example a Plumber would not be able to obtain an H1B since a bachelor’s degree is not required for an entry level position. However, a professional such as an Architect would be able to obtain an H1B since a bachelor’s degree is a requirement for an entry-level position as an Architect.

The employer must also clearly explain how the job title fits the actual duties to be performed by the alien and how the job duties described by the employer fit the job title of a specialty occupation. Additionally, the employer must prove by way of a Labor Condition Application (LCA) that he is ready, willing and able to pay the Prevailing Wage for the position.

Conclusion: It is allowable for a non-immigrant E-2 Visa holder to change status to that of H1B so long as he meets all the requirements for the H1B category.

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