One of the advantages of an exchange visitor visa is that you are allowed to change from J-1 to another nonimmigrant status if you wish to remain in the United States after the completion of your program.
Though there are a few exceptions to this, which we are also going to discuss. The O-1 nonimmigrant visa is one of the categories you can easily switch to from your J-1 status. This visa offers many benefits over other types of work visas. Some of the benefits of having an O-1 visa include but are not limited to, the following:
- An unlimited period of stay in the U.S – an O-1 can be extended for as many times as is needed as long as the requirements for the O-1 visa are met
- Covers a variety of fields (academics, athletics, science, arts)
- There is no annual cap, unlike other work visa types that have a numerical limit on the number of foreign workers each year.
- It allows your dependents to live and work in the U.S.
- Applying later for permanent residency as an O-1 nonimmigrant is easier, especially the EB-1 green card, which requires no PERM Labor Certification
O-1 Visa Overview
The O-1 is a nonimmigrant visa for foreign nationals who possess extraordinary ability in the arts, sciences, education, business, or athletics. It is also available to those who have demonstrated remarkable achievement in the motion picture or television industry and are earned well-known nationally and internationally for those achievements.
The O-1 visa can be categorized into two subgroups known as O-1A and O-1B. As a J-1 nonimmigrant, you may qualify for an O-1 visa if you can demonstrate extraordinary ability, or you are highly exceptional in your chosen field.
Evidentiary Criteria for O-1A
The O-1A subcategory is for people in the sciences, business, education, or athletics. If your career is in any of these fields, you are expected to have a level of proficiency that distinguishes you as being in the small percentage of those who have risen to the very top of their fields. To prove this, you must show evidence of at least three of the following:
- Receipt of internationally or nationally recognized awards or prizes of excellence in your field
- Membership in top associations in your field which is meant for individuals with outstanding accomplishments, and judged by recognized international or national experts in the field
- Publication in a major trade journal or news media about you and your work in your field
- Original scholarly, scientific, or business-related contributions of major significance you have made in your field
- Authorship of scholarly works in major media or professional journals in your field
- A high salary for services which must be evidenced by contracts or other reliable proof
- Participation as a judge of other people’s work in your specialized field or allied to your field, either individually or as a member of a panel
- Employment in a critical or essential position for highly reputable organizations
Evidentiary Criteria for O-1B
The O-1B subcategory is meant for individuals in the arts, motion picture or television industry. You must possess expertise that is well above ordinary. To prove this, you must show evidence of at least three of the following:
- You’ve performed as a lead or starring character in a highly reputable production or event
- You’re going to have a starring role in a well-known organization
- Have international or national recognition for your achievements in the industry
- Recognition from government agencies, organizations, critics, or other experts for your achievements in the industry
- A high salary or remuneration that shows your extraordinary skills in the industry
- Evidence of major commercial success of your work reported in trade journals, major newspapers, or other publications.
Some J-1 participants (e.g. fresh graduates who are just starting out in their careers) may not meet the above criteria. If you are in such a situation, your employer may still be able to submit comparable evidence to establish your eligibility.
How Do I Change From J-1 to O-1 Status?
Now that you know the criteria, let’s discuss how to process your change of status from J-1 to O-1. While both the J-1 and O-1 are nonimmigrant visas, the application processing for each of them differs to some extent.
Your J-1 visa was sponsored by your exchange program and the process was most likely done from your home country. This time around, you will need an employer to sponsor your O-1 visa, and you will likely apply for a change of status in the U.S. You will need to follow this guide to process your change of status:
I-129, Petition for Nonimmigrant Worker
Just like almost all employment-based visas, your O-1 visa must be sponsored by a U.S. employer who will act as the petitioner. The employer must file the I-129 to petition the USCIS on your behalf.
It should be filed within 45 days of the date of your employment to avoid delay. The form contains sections requesting information about you, your employer, and the nature of the job offer. Each I-129 must be submitted with relevant documents as supporting evidence.
O-1 Visa Supporting Evidence
One such document is a consultation, which is a copy of written advisory opinion from a peer group or labor organization about your area of ability. The USCIS prefers a watermarked document or one that contains other distinctive marks that confirms the authenticity of the material. However, if you cannot provide a written consultation, the USCIS will base their decision on other evidence in your record.
Evidence of Contract Between You and Your Employer
The petition must also be submitted with a copy of any written summary of the terms of the agreement between you and your employer. This evidence must contain:
- What was offered by your employer; and
- What was accepted by you (the employee)
Note: Even if the agreement was oral, it must be summed up in a written form and submitted with the petition.
This is an explanation of the nature of the activities, events, as well as the beginning and ending dates of the contract. The activities must be within your professional field.
Can I Change from J-1 to O-1 If I’m Subject to the 212(e) Two-Year Residency Requirement?
Some J-1 exchange visitors are subject to a two-year home-country physical presence requirement, which requires them to leave the U.S. for their home country on or before the expiration of their I-94.
If you are in this category and would like to change your status without fulfilling the two-year exercise, you may be able to file for a waiver. You will need to get a waiver approval from the Department of Homeland Security before you can be eligible to apply for a change of status to O-1 visa.
There are five bases upon which a waiver can be granted; you must meet the eligibility requirements of at least one of the five categories and then apply in accordance with the provision under that category. The five bases are:
No Objection Statement
You will need to request for a No Objection Statement from your home country government. Having this means your government has no objection to your intention to change status, and will automatically exempt you from the mandatory physical residency.
Request by a U.S. Federal Government Agency
You may request for a waiver under this category if your J-1 program is of interest to a U.S. federal government agency and your departure might be detrimental to that agency. In this case, you will need the head of the agency to sign your request and submit it to the Waiver Review Division.
You may request for a waiver under this basis if you believe your returning to your home country will expose you to persecution based on your religion, race or political views. To do this, you will need to submit an I-612 to the USCIS.
If you can prove that your two-year departure would cause severe hardship to your U.S. citizen or permanent resident child or spouse, you may request for a waiver under this basis also by submitting av I-612 to the USCIS.
Request by a State Public Health Department
If you are a medical graduate and there is a full-time job offer for you in a state public healthcare facility or its equivalent, you may file for a waiver under this basis. The department must send a waiver request on your behalf to the Waiver Review Division.
Can My Family Members Change Their Status?
Your dependents (spouse and children under the age of 21) may also change their status to allow them to remain with you in the U.S. They will need to file an I-539, Application to Extend/Change Nonimmigrant Status.
All your dependents can be included in one I539. To ensure that your change of status application and that of your dependents are adjudicated at the same time, you will need to file both forms I-129 and I-539 together. You must, however, ensure that you, your employer, and your family members follow the instructions accordingly in each of the forms.
How Our Immigration Attorneys Can Help
Changing from one nonimmigrant status to another is a complex process, especially for an exchange visitor. There are many things required of you, your prospective employer, and your dependents. Any mistake in your application could lead to denial, which means you will have to leave the United States immediately after your I-94 expires. With the help of a professional, you can increase your chances of J-1 to O-1 approval.
At Immi-USA, we have a team of lawyers highly experienced in nonimmigrant changes of status. We will help you file your petition and ensure that you have the best chance your O-1 application approved. You can schedule a consultation with us today by filling out this contact form.