J-1 to H-1B

The J-1 and H-1B visas are both temporary nonimmigrant visas that allow foreign nationals to live and work in the U.S. However, their similarities end there. The J-1 is based on programs while the H-1B uses employers as sponsors. There is a limited list of occupations that qualify for the J-1 while the H-1B allows people from a wide range of jobs to apply. If you have a J-1 visa and are interested in changing your status to an H-1B, this post will cover the entire process including the processing time, J-1 waivers, fees, and more.

In order to make the switch from any nonimmigrant visa status to the H-1B, you will essentially have to start the H-1B process from square one. This will require finding an employer to sponsor you and having them enter your petition into the annual H-1B lottery if that employer is subject to the cap. You will need to have a specialty position with that employer and also possess at least a bachelor’s degree for the position.

The lottery is the most important factor when it comes to switching from J-1 to H-1B status. Each year, the USCIS allots 85,000 visas to be granted. There are 20,000 spots available to petition for beneficiaries with advanced degrees and 65,000 spots for the remainder. If your petition is chosen, then you can begin working as an H-1B employee no earlier than October 1st of that same year.

J-1 to H-1B Change of Status

A J-1 to H-1B change of status should be carefully thought out before applying due to the fact that both the J-1 visa and H-1B visa have their pros and cons.

So what is the process for a J-1 to H-1B transfer or change of status? You can technically apply for an H-1B beginning the new fiscal year and assuming the numerical cap has not yet been met. If the proposed employer is exempt from the cap, then you can file at any time and you can begin working as soon as your petition is approved.

Some complications may arise if your J-1 visa has a two-year home residency requirement. If that’s the scenario, then you must go back to your home country for two years once you’ve completed your J-1 stint before you can apply for any type of work-based visa or green card.

There are exemptions to this home residency requirement by obtaining a J-1 waiver. The J-1 waiver basically revokes this two-year limitation if and only if you meet the necessary requirements.

Statutory Bases: J-1 Waiver

There are five statutory bases from which you can apply for a J-1 waiver. These include:

  • No Objection Statement
  • Interested Government Agency in the U.S.
  • Claim of Persecution
  • Claim of Exceptional Hardship
  • Request from Designated State Health Agency

Of course, if you’re already on a J-1 visa program you should be well aware of these factors already. To acquire a J-1 visa in the first place or transfer from J-1 to H-1B contact VisaNation Law Group’s Fort Lauderdale immigration lawyers.

Once you have your waiver, you will need to find an employer to sponsor you and enter you into the H-1B lottery. As of the H-1B Visa Lottery 2022-23 filing season, the registration window opened on March 1, 2022. Dates for the next season have not been released yet but last year the window closed on March 18, 2022.

If your petition is selected, then it will go on to processing. Keep in mind that just because your petition was selected, doesn’t mean that it was approved. It can still be rejected or denied at this stage. If it is approved, your earliest start date will be October 1st of that same year.

In years past, the sponsoring employer would have to put together a petition packet and file that during the lottery window in order to enter the cap. However, USCIS has a pre-registration system that will have employers register their beneficiaries, whose registrations will be selected rather than their petitions. If your registration is selected, only then will your sponsor file a petition.

Here’s a brief overview of how the H-1B cap lottery functions:

  1. The computer-generated selection process picked 65,000 from the entire pool of cap-subject petitions. Those that were not accepted and were eligible for the advanced degree exemption were transferred to the master’s cap pool for a second chance at selection. Because the regular cap is done first, followed by the master’s cap, USCIS has stated that your odds of selection as an advanced-degree holder increase by up to 16% versus the old cap ordering system.
  2. The second lottery selection picked 20,000 to meet the master’s H-1B cap.
  3. Singapore and Chile citizens have 6,800 spots specifically reserved for them.
  4. Not all petitions are subject to the cap. Cap-exempt petitions are those that:
  • Previously counted against the cap
  • Are intended to extend or lengthen the H-1B worker’s time in the country (visa extension)
  • Change the employment terms for current H-1B employees (i.e., location, responsibilities, duties, etc.)
  • Transfer an H-1B status to a different employers
  • Allow the worker to be employed in a second position
  • Are filed by a cap-exempt sponsor, which is either an institute of higher education, a nonprofit organization associated with an institute of higher education, or a governmental research center.

Also, it is important to note that, just like for a J-1 visa, you cannot sponsor yourself for an H-1B under any circumstances. You can potentially be sponsored by a company that you own, but an entity above you (such as a CEO or board of directors) would need to sponsor you.

Advantages of H-1B Status

Individuals often weigh the advantages and disadvantages before electing to apply for an H-1B visa or a J-1 visa. One of the major advantages of an H-1B visa is that it permits a max period of stay of six years whereas a J-1 visa for researchers and professors is valid for a period up to five years.

Moreover, if an individual with an H-1B visa also has a Labor Certification or a pending I-140 for a year or more, they may request extensions (yearly) until their status is adjusted to Permanent Resident.

Another advantage of the H-1B over J-1 status is that the latter assumes non-immigrant intent. This means that the individual is expected or encouraged to leave the United States upon completing their program.

On the other hand, H-1B visa status has what’s known as “dual intent” which means that an H-1B holder could theoretically have a pending green card application and still re-enter the country on their H-1B status.

Learn all about H-1B cap exempt jobs and their requirements.

The H-1B also does not carry a home residency requirement. H-1B holders can more easily extend their status, change their status to a different visa, or seek permanent residence without having to file a waiver.

J-1 to H-1B Processing Time

There are disadvantages as well when it comes to obtaining H-1B status. For instance, it takes longer for processing time as compared to J-1 status – about six months. On the contrary, however, you can elect for premium processing for an H-1B petition for an additional fee to speed up the process to just 15 calendar days. Keep in mind, though, that premium processing will not increase your petition’s chances of being selected in the lottery or being approved.

Also, reducing your processing time to 15 days does not excuse you from having to wait six months between the filing date and October 1st (the date you can work). On the other hand, if you are using a cap-exempt employer, premium processing can be an excellent way to expedite the H-1B processing time. Unfortunately, there is no way to get premium processing for a change of status to J-1.

Advantages of J-1 Status

There are a number of advantages when it comes to opting for a J-1 visa over an H-1B visa. First of all, it does not require an LCA (which the H-1B requires) which as a result means there is no need for a Prevailing Wage determination.

Another significant advantage is that an alien can apply for a J-1 visa stamp at a U.S. Consulate Abroad directly after receiving the DS-2019 form whereas an individual applying for H-1B must receive an approved petition from USCIS before applying for their visa.

While the H-1B allows dependents to work in the U.S. through their H-4 status, this is not granted automatically. An H-4 holder will need to apply for Employment Authorization Documents, which is only granted if the principle H-1B holder has an approved I-140 petition for a green card filed with the USCIS.

On the other hand, J-2 visa holders (dependents of J-1 holders) can usually seek employment authorization without having to have an I-140 filed.

Additionally, the J-1 is not subject to an annual cap, so there is no lottery involved with the application process. This means that your status approval is not up to chance, and you can likely plan your future in the U.S. more easily.

Lastly, J-1 visa holders can sometimes stay in the U.S. for longer than H-1B holders. The period of stay for a J-1 varies depending on the length of the program, so some government workers and visitors may be able to stay for up to 10 years or more.

H-1B holders may be able to stay for longer than the typical six-year maximum, but they must have an approved I-140 filed with the USCIS.

Disadvantages of J-1 Visa

Remember that based on the regulations of the J-1 visa you are not permitted to work for another company while on J-1 visa status unless you have received special authorization. To determine if you are eligible for this special authorization it’s necessary to ask your J-1 visa lawyer alongside your exchange program sponsor. On the other hand, the H-1B allows you to work full-time, part-time, or for multiple employers at the same time.

Can I withdraw from my J-1 program?

Another disadvantage is if you decide to withdraw from the J-1 exchange program then you will not have a grace period. In other words, you’ll need to notify your sponsor and then you’ll need to leave the United States immediately. If you stick it out until the end of your program, you’ll have a 30-day grace period before having to leave. Of course, if you change from J-1 to H-1B visa, the details of your “grace period” may change.

Key Distinction Between J-1 and H-1B Visas

J-1 exchange visas are really intended for individuals who will participate and/or promote knowledge, skills or interchange in the field of education, sciences, arts. These categories include scholars, scientists, college students, medical graduates, professors, etc.

In order for it to be an interchange, it’s expected for the individuals to exit the United States once the program has reached its completion and return to his/her home country. The H-1B visa, on the other hand, is an employment category for an organization to hire non-immigrants who will exercise their skills in a specialty occupation.

Since J-1 to H-1B processing time can vary from case to case, we recommend you discuss your case personally with a lawyer.

Additionally, the H-1B has dual intent, which we explained was the ability for a nonimmigrant visa holder to pursue a green card. If you are a J-1 holder, you will need to be careful about how you approach getting a green card. In fact, getting an H-1B may be an appropriate route to avoid issues with your immigration intent. Many J-1 visa holders choose to change their status to H-1B to gain a green card.

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An immigration attorney is the best person to advise you regarding the best course of action. The attorneys at VisaNation Law Group have extensive experience handling both H-1B and J-1 cases as well as changes of status between the two.