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 husband’s E-3 visa expired and he extended his stay through filing an I-129. He is now looking to potentially switch employers and we would like to travel outside of the US while in between jobs. The new business is not yet legally formed and therefore it may be weeks or months before he can obtain a new E-3 visa. Could he theoretically leave the country when he finishes with his current employer, re-enter as a visitor on an ESTA and then leave again to obtain an E-3 for the new employer when the time comes? Thanks in advance for any insight you can share!
Hi Nicole. Yes, I believe he could but I know that sometimes ESTA’s are scrutinized heavily when doing this because it looks a little odd and they might ask more questions about what exactly is going on. I would likely suggest a quick chat with an immigration attorney before doing it.
Yes Josh, it the stamp on my passport entry (E3 Admitted)
Thanks Josh, The E 3 visa stamp from my previous employer has an expiration date 02FEB2023. The admission seal on my passport has (Admitted E3 April 9, 2023). Could I travel out in March 2023 and return by April 8, 2023 with an approved 797 from my new employer ( valid till 2024)
Hi Raghu, when you say “admission seal” do you mean the I-94 stamp in your passport on entry?
No, you don’t have a valid visa so you can’t re-enter.
Has this change been implemented ?
I am hearing yes!
Hey,
I don’t know if it’s published anywhere, but have a watch of this for an update from Green & Spiegel. Sounds like it’s a thing now. Starts around 13:30:
Just adding to the list of people keen for an update! Any changes? Thanks for the great site!
Hi Josh, thank you so much for this blog post! Do you know if any official announcements have been made yet? Or whether we can set up any sort of alerts to be made aware if an official announcement is made by USCIS or Department of State?
I haven’t seen anything yet and honestly don’t have a particular spot to point to at this stage but I’ll keep looking and will update asap!
Hi! Just wondering if there has been any updates on this?
Not that I’ve seen, yet!
Is there a USCIS (or similar official govt website) page that will confirm when this has officially passed that E3 holders can check periodically?
Thanks Josh for all the useful information on this page – VERY helpful.
S
Thanks Steven! Yep I will absolutely publish anything and everything as soon as I see an official notice.
Do you know where this rule is published formally? I’ve searched the internet high and low and can only find that blog entry from Green & Spiegel
Hey there! It’s not published formally yet, per the article “No. You can’t travel just yet, as this rule has not been formally announced.” – As soon as we see anything official, we’ll update the article!
Is there any update on this rule?