Amending an E-3 Visa and Changing Employers
In this article Worldwide Migration Partners will discuss the process of amending an E-3 visa and changing employers within the United States, or at a US Consulate.
Australian citizens in the United States working under an E-3 visa are tied to a specific role and a specific employer. The process is similar for amending employment with the same employer - or - changing employers, and effectively resets the conditions in which you are granted non-immigrant status in the United States for the purpose of temporary employment.
If an employee moves into a position that is considered a “material change” from the position reviewed in the original E-3 visa application, they are required to file an I-129 petition to amend their current E-3 status or apply in person for a new E-3 visa application at a U.S. Consulate outside of the United States.
If the individual E-3 visa holder wishes to change employers, they are required to file an I-129 petition with USCIS to change employers or apply for a new E-3 visa through a U.S. Consulate outside of the United States.
The following details the two options available when amending current E-3 visas, and changing to a new employer.
1. Transfer your E-3 Visa to a New Position in the Same Company or New Employer within the United States
To change employers whilst residing in the United States, your new employer is required to obtain a Labor Condition Application (LCA) for the position you will be employed for, and to file a Form I-129 petition for a change of status. This petition must be approved prior to you starting work.
This route is effectively changing your non-immigrant status in the United States to be valid with your new employer, and it does not give you a new E-3 visa stamp in your passport. This means you do not have the option to legally enter the US for employment following international travel, since you will not posses a valid employment visa that allows re-entry for that purpose.
Transferring through the USCIS is generally a lengthy process (6-8 months), but E-3 Visa petitioners can apply for expedited processing in order to speed up processing, guaranteed within 15 business days, and begin working for your new employer as soon as approval is granted.
The process is identical for an employee who changes position in the same company, amounting to a 'material change' that will require an amendment to their current E-3 visa and LCA.
This is a suitable option for E-3 visa holders that would like to start with a new employer ASAP, and intend to stay in the US for the period granted through a change in status. It comes with the caveat that a new visa will be required to re-enter for employment if you leave the United States, so it really is a matter of timing and how quickly you are wanting to start in the new position.
For any international travel occurring after a USCIS petition is in process, individuals should contact us for advice on their next course of action.
U.S. Custom and Border Protection (CBP) has provided some guidance that an E-3 visa holder with a valid visa may be allowed to leave and return to the the U.S. on that current visa if they have an approved I-129 petition before departing.
The individual must present both their E-3 visa and I-129 approval upon entry. It may depend on an individual’s specific circumstances if this is applicable, or even advisable.
2. Apply for a New E-3 Visa outside of the United States
The other option is to apply for a new E-3 Visa abroad, and re-enter the United States.
This will usually take a little longer than USCIS premium processing, though will reset your I-94 status upon re-entry allowing legal stay in the United States for the duration of its validity. This option will allow for individuals to apply either inside or outside of Australia, though it has routinely become difficult to secure appointments for non-nationals at US consulates, so it is usually advised to return to Australia and use the mail in process.
The process of re-applying for a new E-3 Visa is much-like your initial application, except you will be obliged to tick 'yes' when asked if you've had an E-3 Visa before on your DS-160 form and provide the required paperwork for your new employer.
If approved, a new visa label will be stamped inside your passport, and allow you to re-enter the United States under the terms of a valid non-immigrant visa for temporary employment.
Change to Non-Immigrant Status for Other Reasons
In less common situations, Australian citizens who are in the United States in valid status with a visa, may be able to change their status from within the U.S.
There are rare situations in which an individual may need to change from E-3 status to another status at the end of employment with their current employer or through a termination of employment.
For example, if an individual needs more time in the U.S., it may be appropriate to file an I-539 Application to change to a B-Visa visitor status. This would be done to facilitate a longer period in the U.S. for that individual to wrap up their affairs before being legally required to depart the United States.
Please keep in mind it is not possible to change non-immigrant status if the individual initially entered the United States under the ESTA (Visa Waiver Program).
USCIS Premium Processing Service for E-3 Petitions
The change in Department of State policy in 2021, meant a change in status of Australian Citizens in the US on an E-3 Visa was now a viable alternative path, with a timely resolution.
Premium processing provides expedited processing for various visa classifications when filed on Form I-129 with the USCIS. When utilized, the USCIS guarantees processing within 15 business days as opposed to a much slower standard processing (6-8 months)
For more information see our detailed article on E-3 Premium Processing
Have Questions About Amending Current E-3 Visas and Changing Employers?
Amending a current E-3 visa or changing an employer has several paths available that may be suited to an individuals circumstances. Please contact us at Worldwide Migration Partners for a consultation to discuss your specific situation.
About The Author
Melissa Vincenty is a U.S. Attorney, a registered Australian Migration Agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 25 years of experience in U.S. Immigration Law, including practising at the world’s largest U.S. Immigration Firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
Disclaimer: The information in this article is general in nature, may not, and is not intended to constitute the most up-to-date legal or other information, and is for general informational purposes only. It does not represent legal advice specific to any individual/s situation, and should not be relied on as such. Please contact us to schedule a legal consultation for advice specific to individual circumstances.
