J-1 to H-1B: A guide to changing your J-1 visa status
In some cases, new opportunities arise while people are present in the US on J-1 status, which may lead them to seek an adjustment of status from a J-1 visa to a dual-intent visa like an H-1B visa.
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The J-1 visa program offers people from other countries an opportunity to further their education and careers while studying and working in the United States. Under this program, people can work or study in the U.S. temporarily before they return to their respective home countries and put their skills to use.
In some cases, new opportunities arise while people are present in the US on J-1 status, which may lead them to seek an adjustment of status from a J-1 visa to a dual-intent visa like an H-1B visa.
Before you apply to adjust your status, however, it’s important to understand how the process works as well as other considerations such as whether the two-year home presence requirement applies to you, whether you might be eligible for a waiver, and whether adjusting your status makes sense for you.
What is a J-1 visa?
The J-1 visa is a non-immigrant visa that allows certain categories of exchange visitors to come to the U.S. to further their education or work temporarily. Originally introduced by the Mutual Educational and Cultural Exchange Act of 1961, the program is intended to foster better relationships between the U.S. and other countries. While it was initially overseen by the U.S. Information Agency it now falls under the purview of the U.S. Department of State. The J-1 visa is program-based instead of employment-based. To get a J-1 visa, you must first be accepted into a program by an approved sponsoring institution, agency, or company. The length of time that you will be allowed to stay in the U.S. will depend on your particular program. J-1 visa programs fall into the following categories:
Secondary school student
Summer work and travel
University or college student
To obtain a J-1 visa, you must be accepted to an approved sponsor's program. You can apply for a J-1 visa by submitting a Form DS-2019. This form is issued by the responsible officer at the sponsoring agency. Once you have applied to an approved program and have been accepted, the responsible officer or the alternate responsible officer should issue this form. Once you receive it, you can apply for a J-1 visa at the U.S. consulate or embassy in your home country. Your spouse and minor children can apply for J-2 visas based on your J-1 visa, which will allow them to travel to the U.S. with you. Some J-1 visa categories do not allow spouses and children to travel with the J-1 visa holders, however. For example, camp counselors and au pairs do not allow family members to travel and stay in the U.S. with their family members who have J-1 statuses. A J-1 visa will allow you to remain in the U.S. until the end of your program as listed on your DS-2019.
Can J-1 visa holders change their visa statuses?
J-1 visa holders cannot typically change their statuses to Green Cards or dual-intent visas.
In order to initially secure a J-1 visa, applicants must demonstrate their ties to their home countries and show their full intention to return home at the end of their program. However, people can sometimes apply to adjust their status to different types of visas without placing their non-immigrant status as a J-1 visa holder in jeopardy if they meet the requirements for the other visa type.
To change your J-1 visa without having to leave the country for two years, you will either need to be an exchange visitor who is not subject to the two-year home-country residence requirement or be able to obtain a waiver of the requirement. You can learn more about J-1 visa waivers and how to determine if you are eligible here.
If you are subject to the home residence requirement and are unable to secure a waiver, you will have to return to your home country for two years before you can apply for a different type of visa.
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Other visas you can change to from a J-1 visa
J-1 visa holders have a few options when they want to adjust their statuses. Some common types of visas among people changing from a J-1 visa include the H-1B visa, the F-1 visa, the O-1 visa, and the marriage-based Green Card.
The H-1B visa is an employment-based visa. With this type of visa, you must have a job offer from a sponsoring employer. There are annual caps on the number of H-1B visas that are available to employers, making it important for employers to apply as early as possible.
The application process for an H-1B visa has recently become longer, and applicants are facing more scrutiny as the requirements have been recently tightened under the Trump administration. However, it is still possible to get an H-1B visa through an employer.
The F-1 visa is another type of nonimmigrant visa meant for college and university students. Like J-1 visas, students who are present in the U.S. with F-1 visas must pursue full-time courses of study in their chosen degree fields at accredited and certified U.S. universities or colleges.
To get an F-1 visa, you must be able to show that you have sufficient funding from personal sources to support yourself while you are in the U.S. The J-1 visa requires that a substantial amount of your funding comes from outside sources such as a fellowship or your government. F-1 visas allow students to work on-campus like J-1 visas. However, F-1 visas also allow students to work off-campus in a program that directly relates to their fields of study.
While the dependents of students with J-1 statuses can work and live in the U.S. with J-2 visas, the dependents of F-1 visa holders are only allowed to study part-time and cannot work in the U.S.
One reason why you might want to change your status from a J-1 visa to an F-1 visa is the home residence requirement. While J-1 student visa holders are subject to the two-year home presence requirement, F-1 student visa holders are not.
The optional practical training (OPT) for off-campus employment can also be used after graduation for up to 12 months per education level. Because the F-1 visa does not have a two-year home presence requirement, it is also easier to adjust your status from an F-1 visa to an immigrant visa if you get married to a U.S. citizen or lawful permanent resident.
The O-1 visa is a visa that is meant for people who possess extraordinary ability in the sciences, arts, athletics, business, or education. To obtain this visa, you must demonstrate that you have risen to the pinnacle of your field.
To adjust your status from a J-1 visa to an O-1 visa, you will need to have a sponsoring employer who can petition the USCIS for you.
You must submit supporting evidence of your extraordinary ability such as an advisory opinion from a labor organization or a peer group that documents your ability. Written evidence of the agreement between you and your employer must also be submitted along with an itinerary of what activities you will engage in during the contracted period.
If you marry a U.S. citizen or permanent resident while you are in the U.S. on a J-1 visa, you can apply for an adjustment of status to a marriage-based Green Card. However, if you are subject to the two-year home presence requirement, you will need to either return to your country and wait there for two years before your spouse can petition on your behalf or secure a waiver of the home presence requirement to apply within the U.S. The statutory bases for J-1 waivers will be discussed in more depth later in this article.
J-1 to H-1B visa transfer: Why apply for a change of status?
There are several reasons why you might want to apply for a change of status from a J-1 visa to an H-1B visa.
When your J-1 visa program ends, you are generally required to return home to your country. The H-1B visa allows people with H-1B status to work in the U.S. for their sponsoring employers for three years. This visa can be renewed for an additional three years for a total stay of six years.
While the H-1B visa is a temporary visa, it is a dual intent visa. This means that you can apply for status as a lawful permanent resident while you are in the U.S. on an H-1B visa and working for your employer. If you secure an H-1B visa, you will become eligible to apply for and receive a Green Card if you remain and work in the U.S. for the six years that you are allowed with an H-1B visa.
If you are married and secure an H-1B visa, your spouse and children will be eligible to apply for H-4 visas that will last throughout the duration of your H-1B visa. The H-4 visas will allow them to apply for employment authorization documents that allow them to work for the duration of your H-1B visa.
Statutory bases to apply for a J-1 waiver
Under the Immigration and Nationality Act Sect. 212(e), which is codified at 8 US Code § 1182(e), certain exchange visitors who are present in the U.S. with a J-1 status must return to their home countries for a minimum of two years before returning to the U.S. on a nonimmigrant visa or an immigrant visa.
The home residency requirement applies to the following categories of J-1 visa holders:
People whose education in the U.S. were funded partially or wholly by their home country
Students who participated in a graduate medical training program
People whose fields of study are listed on the needed skills list for their home countries
There are exceptions to this requirement. There are five statutory grounds on which a waiver might be based that are listed in the law and explained further in the code of regulations at 22 CFR §41.63.
These statutory basis for a waiver of the two-year home-country residence requirement include the following:
Sponsorship by an interested government agency
No objection by the government of the home country
Employment working in a designated area with a health-care shortage
The exceptional hardship exception to the two-year home-country residency requirements for J-1 visa holders applies when the U.S. citizen or permanent resident spouse or minor child of the J-1 visa holder would experience extreme hardship if the visa holder was forced to return to his or her home country for two years. You can apply for an exception to the home residency requirements if returning to your country for two years would subject you to persecution because of your race, religion, or political beliefs.
Another exception occurs when an interested U.S. government agency is sponsoring you or is interested in the work that you are performing. In that case, the interested agency may file a waiver request on your behalf.
If your skill is on the needed skills list for your home country, you may be able to get a waiver of the two-year home-country residency requirements if the government of your country has no objection to you not returning. To get a waiver on this basis, you will need to get a statement of “no objection” from your home country. Your country's foreign office can send its statement to the U.S. State Department through the U.S. embassy or consulate in your home country.
The final grounds for a waiver of the two-year home residency requirement is if you are a physician who has accepted employment in a designated health-care shortage area within the United States. To qualify for this waiver, the J-1 visa holder must agree to work for at least three years in the shortage area and must secure a request from an interested government agency or a state public health department.
To apply for a waiver, you must first get the Form DS-3035. You can download this form from the J-1 Visa Online Waiver website. After you fill out this form, you must print and mail it, your Forms DS-2019 that you have been granted, two self-addressed, stamped envelopes, and the $120 application fee to the following address:
Department of State J-1 Waiver
P.O. Box 979037
St. Louis, MO 63197-9000
When you fill out the form online, a barcode and a SEVIS number will be generated. The barcode should be printed and mailed with your application materials. You can use the number to check the status of your waiver application online.
Once the State Department reviews your application and materials, it will make a recommendation about whether the home residency requirement should be waived. The USCIS will make the final determination.
Advantages of other visa types
Each type of visa has its different advantages as compared to a J-1 visa. The F-1 student visa offers the following advantages over a J-1 student visa:
There is no two-year home residency requirement
The optional practical training in your field of study can be completed for up to three years after you graduate with your degree
You can remain in the U.S. for a longer period with the OPT option instead of having to leave when your program of study is completed
The H-1B visa offers the following advantages over a J-1 visa:
H-1B status lasts for three years and can be extended for three more years
If you remain in the U.S. and work for the entire six years, you will be eligible to apply for a green card
The H-1B visa allows you to stay in the U.S. for longer than a J-1 visa
There is no two-year home residency requirement before you can apply for an adjustment of status from an H-1B visa to a green card
The O-1 visa offers the following advantages over a J-1 visa:
The sponsor can be an employer or an agent in the U.S..
The initial period lasts for three years, but it can be extended an indefinite number of times as long as you continue to qualify for O-1 status.
You can bring your family under O-3 statuses and any necessary assistants under O-2 statuses.
The O-1 visa is a dual-intent visa, allowing you to apply for an EB visa or another type of immigration visa.
Why stay on a J-1 status instead of going to an H-1B status?
For some people, remaining on a J-1 status might make more sense than trying to adjust their statuses to H-1B status.
To get an H-1B visa, your sponsoring employer must petition on your behalf. Before your employer can petition for an H-1B visa, they must file a labor condition application. By filing this document, the employer states that you will be paid equally as other employees and that you will receive the prevailing wage.
After the LCA is certified, the employer may then apply for an H-1B visa. However, the H-1B visa process has become more competitive in recent years, and the applications now face increased scrutiny. There is also an 85,000 cap on the total number of H-1B visas that are issued each year. A J-1 visa does not require an LCA and it is program-based instead of employer-based.
When you receive your DS-2019, you can immediately obtain your J-1 visa at the U.S. Consulate or Embassy in your home country. By contrast, you must wait for your employer's H-1B petition to be approved by the USCIS before you can apply for your H-1B visa.
Another advantage of a J-1 visa is your spouse and dependent children will be allowed to work in the U.S. while you are on your status until the completion of your program. With J-2 visas, they do not need to apply for employment authorization documents to work. If you have an H-1B visa, your spouse will have to file an I-140 form to request additional employment authorization documents before he or she can work.
Unlike an H-1B visa, there is not an annual cap on J-1 visas. This means that it might be easier for you to secure a J-1 visa than an H-1B visa.
Finally, depending on the program that you will be participate in using with your J-1 visa, it is possible that you can remain in the U.S. longer with a J-1 visa than an H-1B visa. For example, if you are a government worker or visitor, you may be allowed to remain in the country for up to 10 years on your J-1 status.
Disadvantages of a J-1 visa
J-1 visas have a few disadvantages, including the following:
Many J-1 visa holders are subject to the two-year home-country residency requirements. You must receive special authorization to work for an employer outside of your sponsoring program. There is no grace period if you decide that you want to withdraw from a J-1 program, meaning you will have to immediately leave the U.S.
If you complete your program, you will have to leave by 30 days following its end
Why go over to an H-1B visa?
Adjusting from J-1 status to an H-1B status offers several benefits. Unlike the J-1 visa, the H-1B visa is a dual-intent visa. This means that you will be eligible to apply for a Green Card after you have worked in the U.S. on your H-1B status for six years. The H-1B visa also allows you to remain in the U.S. for a longer period than most types of J-1 visas, and your dependents can remain with you in the U.S. throughout the duration of your visa. When you have an H-1B visa, you can work for multiple employers if they are each willing to sponsor you. Finally, getting an H-1B visa may help to avoid the two-year home-country residency requirement if you decide to apply for a green card in the future.
Distinctions between a J-1 visa and an H-1B visa
The J-1 visitor exchange program is meant for individuals who want to exchange knowledge, education, and skills with the U.S. and then to return home to use what they have learned. It is not intended as a program through which people can secure immigration visas. J-1 visas are based on the sponsoring programs, often universities and research institutions. Once your program ends, you will be expected to return to your home country.
H-1B visas are dual-intent visas, which means that you will have the potential to secure a green card after you have worked in the U.S. on your H-1B status for six years. They are employer-based. Many people who have J-1 visas attempt to adjust their status to H-1B so that they can apply for Green Cards in the future without jeopardizing their non-immigrant status.
J-1 visas, F-1 visas, H-1B visas, and O-1 visas all have their advantages. If you have a J-1 visa, it might be beneficial for you to change your status to one of the other types of visas if you meet the eligibility criteria. But after you secure the right type of visa, you’ll have to begin planning your life in the U.S. and think about everything from your housing to your finances.
If you plan to live and work or study in the U.S. for a long period of time, you should think about your credit. Having good credit is crucial to your ability to find an apartment, buy a car, get a credit card, and to complete other transactions that will enable you to live comfortably.
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