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J1 to H1B Visa: Change of Status, Gap, Processing Time, Transfer

J1 to H1b Process

 

While J-1 visas and H-1B visas have both their advantages and disadvantages, one may be more inherently beneficial for your situation. A J-1 visa provides foreign nationals with exchange opportunities in the form of cultural and educational programs while an H-1B visa is used for temporary employment visitors as well as those who want to apply for permanent residency. In this post, we’ll explore the J-1 to H-1B process, including processing times, change of status, transfers and more.

The first thing to note is that, to transfer from any nonimmigrant status to H-1B, you will need to go through the entire H-1B process from the beginning. This means that you will need to find a U.S. employer to sponsor you for your visa. That employer will need to offer you a specialty position that requires at least a bachelors degree. And, of course, you need the corresponding degree.

Perhaps most importantly, however, you need to adhere to the annual H-1B lottery. If your employer is subject to the annual cap of 85,000 total visas, then you will need to file your J-1 to H-1B transfer petition on April 1st of the year you want to transfer. If your petition is selected and subsequently approved, you will be able to start working as an H-1B worker on October 1st.

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 to 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 anytime.

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 visas or green cards.

There are exemptions to this home residency requirement through 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 our Fort Lauderdale immigration lawyers. 

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, ISSS 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.

Click here to learn about H-1B cap exempt jobs and their requirements.

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 the six months between April 1st (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.

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/ore 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 one of our lawyers.

How Our Immigration Attorneys Can Help

An immigration attorney is the best person to advise you regarding the best course of action–whether it be a remaining on your J-1 visa or transferring to H-1B. If you do decide to make the change, your attorney can guide you and help you optimize your immigration process to save you both time and money.

Shilpa Malik, the lead attorney at SGM Law Group has extensive experience handling both H-1B and J-1 cases as well as changes of status between the two. Let us handle your case and make sure that your immigration is in the best hands. Contact our office to schedule your initial consultation by filling out this form.

J1 to H1B RELATED TOPICS

 

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