In another exciting update for E3 visa holders, information coming in from the Department of State's liaison to the American Immigration Lawyer's Association (“AILA”) suggests that E-3 visa holders will soon be allowed to travel internationally (in and out of the United States) after filing an internal I-129 to transfer employer (if they are in possession of an I-797 Approval Notice).
10/23/22: Updated to include confirmation of change below.
It's been an exciting few years for E3 visa holders and their dependents with the addition of premium processing for E3 visas, and the automatic work authorization for spouses, and now we've got another step making the process of moving to and living in the United States on an E-3 visa even better.
What was the rule prior to this change?
Prior to this update, E3 visa holders who wanted to change employers without going to a US Consulate outside of the United States were able to start work with the new employer once they received their confirmation from USCIS through filing of an I-129. The downside of this, however, was that they were not allowed to travel internationally and re-enter the country until they went and got a new visa stamp.
This meant that while there was flexibility to change employers, it did mean that you were stuck in the United States until you had planned to go get a new visa, which is still incredible difficult despite appointments now being possible around the world again.
What exactly is changing for those who have transferred to a new employer?
This change, in short would mean that E-3 visa holders who have a still valid E-3 visa in their passport, would be able to leave the US and re-enter the US even if they have filed an internal I-129 and moved to a new employer (assuming they have a valid I-797 Approval Notice in their hands before leaving).
Re-entry would require presenting both of these documents, and showing that you have received approval from USCIS and you would be able to be permitted until the expiry of the original visa in your passport.
From law firm Green & Spiegel LLC:
Australian Citizens to be permitted to travel using valid E-3 Visa and Form I-797 Approval Notices, even if employers do not match.
Along with introduction of Premium Processing for E-3 Petitions with USCIS, measure should increase mobility of E-3 Visa holders previously encumbered by need to obtain employer-specific E-3 Visa after transferring employers within the United States.
Prior to now this has been an option for O-1 visa holders as well as H-1B visa holders, but the courtesy has not been extended to E-3 visa holders until now.
What does this change look like for a current visa holder?
The easiest way to explain what's changing is to use an example:
- You receive a job offer from Employer A in the United States, prepare all your E-3 Documents and attend your appointment at a Consulate outside the United States;
- You receive your E3 visa with Employer A stamped in your passport which is valid for 2 years;
- You enter the US and start work for Employer A;
- Fast forward 6 months and you don't really like the job, maybe you decide to leave the job or you lose that job – but you've luckily found a new offer (within the allowed time)
- You file an I-129 with premium processing to transfer your status to the new employer (Employer B)
- Two to three weeks later you receive the I-797 Approval notice in the mail saying that you're ready to go
- You start working for Employer B;
- At this point, you still have the same visa saying Employer A valid for ~18 more months and are in possession of the I-797 Approval of transfer to Employer B
- You want to go on a holiday, visit your family, or catch up with friends outside the US
- To date, you are able to leave the US, but you could not return to the US without going back to #1 with Employer B and getting a new stamp in your passport
- But with this change, you would be able to present the stamp from #2, and the I-797 Approval notice from #6 and re-enter the country for ~18 more months!
When does this change become active? Can I travel right away?
This has now been codified:
If an application to change the terms and conditions of E status or employment is approved, the Service shall notify the applicant on Form I-797. An extension of stay in nonimmigrant E classification may be granted for the validity of the approved application. The alien is not authorized to begin the new employment until the application is approved. Employment is authorized only for the period of time the alien remains in the United States. If the alien subsequently departs from the United States, readmission in E classification may be authorized where the alien presents his or her unexpired E visa together with the Form I-797, Approval Notice, indicating Service approval of a change of employer or of a change in the substantive terms or conditions of treaty status or employment in E classification, or, in accordance with 22 CFR 41.112(d), where the alien is applying for readmission after an absence not exceeding 30 days solely in contiguous territory.
https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214/section-214.2?fbclid=IwAR1NPByl433RAr9j__c6qKZKy0g0DvaJ-nDmjApKVHXm9ZVHNyrlSgg1WPQ#p-214.2(e)(8)(vi)
What this change does not do
While this change is a fantastic step forward for those who want the flexibility to change employers or for those who have lost their jobs, it does not change the fact that once your visa has expired in your passport, you cannot re-enter the United States.
You can file an additional I-129 and stay in the US working for another (up to) two years, but once you leave, you still need to return to a US Consulate or Embassy somewhere outside the US and get a fresh stamp and start the process again.
This change also does not change anything about the requirement to wait for approval before you start work with a new employer. When you file for a change you still have to wait until you actually hold the I-797 Approval in your hand before you can start with the new employer (as well as take advantage of this change).
For more, be sure to check out the great block at Green and Spiegel LLC.
Hi Josh,
My current E3 Visa on my passport just expired recently. I have a valid I-797 from my new employer with a new expiry date.
I am travelling outside the USA for vacation and will need to return for work. Would I have any complications trying to return back to the US?
Thank you!
Yes. No visa, no entry.
Hi Josh – thanks for this post! Super helpful. I see there was a post several months ago saying that you are aware of several people using the framework described in this post (old visa passport stamp + new employer proof) to reenter the country, but just wanted to confirm if your still hearing the same and whether you are aware of anyone NOT being admitted?
Also if there is any further specific guidance from Department of State or AILA (or other) that states explicitly that they are ok with the framework?
Thanks for you help!
I haven’t heard anyone not being permitted! That being said, I don’t check-in on people who are doing it but would expect to hear if this had not worked.
I’ll look into explicit updates!
Hello Josh,
My husband is on an E3 visa. He changed employers and with the new employer he got a valid I-797. being a dependent i still have visa stamped on my passport from his old employment. I have to travel outside US to visit family. Will I be able to enter back into the US on the same Visa?
please guide.
Thank you
My understanding is that you need to get a new visa too reflecting your husband’s new visa!
Hi everyone,
I received the below message and am wondering if anyone has actually successfully left and reentered the country after an in-country change of employer with an E3 visa?
“Here is the Q from AILA and A below from CBP:
Question: Please confirm that an unexpired E visa issued to a foreign worker based on an application for employment
with Company A remains valid for admission when presented with a Form I-797, Notice of Action issued
by USCIS, approving a change of employer for the worker filed by Company B (in the same manner that
an unexpired H-1B visa may be presented along with a new Form I-797, approving change of H-1B
employer).
Answer: CBP is not prepared at the moment to issue a blanket rule that an E visa holders can be admitted to
work for a new employer as described in the question (new Form I-797 Approval). However, CBP will
consider this in its discretion on a case by case basis. CBP indicated it will follow up with USCIS to gain
an understanding of how frequent this situation occurs from USCIS’ perspective
The attorney recommendation: it is better to request a new visa, but the decision remain yours.”
Hi Hugh,
What was the date of that question and answer? CBP won’t ever really say “We 100% will allow this” they always leave themselves room for discretion with entry!
Hi Josh,
The response was 11/22/2023 and question was asked a few days before.
Hi Josh – sorry if this is coming through twice but I don’t think my first post went through!
Just wondering if you have continued to see people successfully recentering the US with the old stamp + new employer proof?
Also it would be helpful to know if you are aware of anyone being denied entry with this set up.
Have you seen anything more recently from department of state or other government bodies that have given more formal direction that this is a valid way to reenter the US?
Thanks for the help!
Hi Josh, thanks for the article.
Are you aware of anyone utilising this method of entry (E3 old employer, I-797 for new employer) or is it just theoretical at this point?
Trying to decide whether to get a new visa for my new employer.
Thanks.
Yep I’ve seen quite a few people use it! If your old visa is valid, you can re-enter, but a new visa is always the safest and easiest bet.
Hi Josh – wondering if you know the answer here. I have a valid E-3 until July 2025. I just accepted a new job though, that will also sponsor my E-3, they agreed to do premium processing and are targeting a start date of 9/18 (or as close to that, whenever I get the i797A). I have international travel planned from 9/7-9/15. I don’t know if the i797 will be approved before 9/15 but it will likely be pending. When I return to the US, can I still enter in on my existing E-3 if the employer transfer is still pending? if it’s approved then it seems I can just show the i797A as this article suggests.
I am on sabbatical leave from my current employer already so there’s flexibility with when the end date there is (so I could still be employed by them by 9/15, or does that not really matter given the 60 day grace period? – like do I need to actually be employed by my current e-3 in order to re-enter with it?)
Any guidance would be helpful!
Yep you need to be actively employed to enter on a visa, so I think you need to be careful. The 60 day grace period isn’t for re-entry it’s for the ramp out.
This exciting update for E3 visa holders marks a significant stride in their work flexibility. Previously, changing employers within the US meant sacrificing international travel until a new visa was obtained. However, the Department of State’s recent announcement now allows E-3 visa holders with a valid I-797 Approval Notice to travel internationally, streamlining the process for those who have transferred employers. This development, akin to benefits enjoyed by O-1 and H-1B visa holders, promises newfound convenience and freedom. For those seeking expert guidance on such matters, Business Visa Consultants like Ipm.global can provide invaluable assistance. This change not only enhances career mobility but also exemplifies the evolving landscape of immigration regulations.
Thanks so much Josh for this article and website!! Was looking for the answer to this for a while and found the answer here on this site.
You’re so welcome!
Hi I have changed employers within USA original visa expires OCT 23 and 797 expires March 24, my wife’s visa expires in Oct 23 therefore I would like to match our status to be able to travel overseas which means that I need to get a new stamp in our visas.
Can we get a new visa stamp within USA? and when I have to do it? I am assuming it has to be done before Oct 23.
thanks
You cannot get a stamp from inside the country, you need to travel and get one from outside the country. Yes, I would leave before your wife’s visa expires if you want to go together.
Hello Josh,
I have entered US in 2019 worked for company A and in 2021 I changed to employer B within US and currently extended the visa again with same employer B internally. Now I am planning to go overseas and return, so my question is should apply for E3R or E3 visa(I am confused when I looked at this option in DS160) ? Since I am no longer with my previous employer A should I apply for New E3 visa or E3R?
Thank You.
Hi Josh, Any suggestion on above ?
It honestly doesn’t matter but just go E3!
Thanks Josh.