E3 Visa holders to be permitted to travel after an internal change of employer in 2023

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 for E3 visa holders?

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 E3 visa holders 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 E3 holder?

The easiest way to explain what’s changing is to use an example:

1. 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;
2. You receive your E3 visa with Employer A stamped in your passport which is valid for 2 years;
3. You enter the US and start work for Employer A;
4. 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)
5. You file an I-129 with premium processing to transfer your status to the new employer (Employer B)
6. Two to three weeks later you receive the I-797 Approval notice in the mail saying that you’re ready to go
7. You start working for Employer B;
8. 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
9. You want to go on a holiday, visit your family, or catch up with friends outside the US
10. 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
11. 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.