Your J1 visa served you very well for some time, but you are now considering changing its status to suit your new reality and, among the several visas for workers, you are considering the H1B visa.
Before making the move, you need to be familiar with the H-1B visa requirements, as well as with the key differences between both visa statuses.
We will provide you with the information you need and walk you through the path to change your J1 status to H1b status.
What is the J-1 visa status?
The J-1 visa is a nonimmigrant, exchange visitor visa for educational and cultural exchange programs designated by the Department of State, Bureau of Educational and Cultural Affairs.
It allows the visa holder to participate in approved programs for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
The maximum length of the J-1 visa status depends on the rules of each particular Visitor Exchange Program, but there are some eligibility criteria for extension of the J-1 visa.
The most common J-1 categories and duration are:
- Short-term Scholar: 1 day – 6 months
- Professor & Research Scholar: 3 weeks – 5 years
- Physician: Limited to 7 years unless there is documented exceptional need.
- Secondary School Student: No less than one academic semester and no more than two academic semesters.
A complete chart can be seen here.
Can a J-1 visa holder work in the USA?
J-1 visa holders can be authorized to work based on the program with which they entered, as long as approved by their programs.
For instance, if you come to the USA with a J-1 Visa for an au-pair program, you are allowed to work as a live-nanny for a pre-approved family under your program.
The family members of the J-1 holder
The spouse and minor children of a J-1 visa holder are eligible to come to the USA as J-2 dependents.
Regulations allow the J-2 dependent to work in any job, full-time or part-time, as long as they have a valid Employment Authorization Card from USCIS.
Can a J-1 visa holder apply for a green card?
Although transitioning from J-1 to a green card is possible, it is not an easy process and some J-1 visa holders are not even eligible for a green card. Some obstacles for the green card process are:
- The J-1 visa is not a dual intent visa, therefore, the J-1 holder must show the intention of returning to their home country after the expiration of J-1 visa;
- Two years home country residency requirement: some J-1 categories require the nonimmigrant to leave the USA for a period of 2 years before applying for permanent residence in the US:
- If you funding from the U.S. government, home government or an international organization to use for the J-1 program.
- If you have worked or studied in a field that appears on the “skills list.” This is a list of fields of specialized knowledge and skills that are needed in the J-1’s country of last permanent residence for its development.
- If have participated in a graduate medical training program in the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates.
- Immigrant intent: as mentioned, the J-1 visa does not allow dual intent. When applying for a green card, you must be able to show that your desire for permanent resident comes from unexpected changes in your circumstances, such as marrying a USA citizen, for instance.
There are a few circumstances that allow for a J1 waiver, helping you to circumvent the 2 years home residency requirement:
- Getting a no objection statement from your home country, confirming that your home government has no objection to you not returning to the home country and has no objection to you staying in the US.
- Demonstrating that you might be subject to prosecution if returning to your home country
- Demonstrating exceptional hardship to your U.S. citizen (or lawful permanent resident) spouse or child, for instance, a decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation.
- Your waiver comes from a request by an Interested U.S. Federal Government Agency: an interested government agency must determine it is in the public interest that you remain in the United States.
- Your waiver comes from a request by a designated State Public Health Department or its equivalent: a designated state health agency can request a waiver on your behalf if you are a physician and have been offered a full-time job at a health care facility facing shortage of health care professionals and commits to working for a total of 40 hours per week for at least three years.
If you are uncertain about being subject to the 2 years of home residency requirement, book now a consultation for our professional advisory opinion.
Rather than applying for a green card, you can consider transitioning from T1 Visa to an H1B visa.
The H1B visa
The H1B visa is a nonimmigrant visa that allows companies to temporarily hire foreign workers from specialty occupations with bachelor’s degree or higher in areas such as finance, accounting, architecture, engineering, mathematics, medicine, IT, and so on.
In order to apply for an H1B, you must have a sponsoring employer to a job offer that meets the following criteria:
- A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
- The required degree must be related to the position to be filled.
- The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
H1B visa allows their holders to work in the USA for up to three years, with the possibility of extension for another 3-year period, or longer if a green card process is pending.
The H1B visa also allows their holders to seek permanent residency without losing their status if the application is denied.
H1B annual cap
The H1B is among the most popular visas, due to its range of benefits for their holders. However, there is a numerical limitation on how many H1B visas are available each year.
Each year, 65000 H1B are set available, with an additional 20000 for master’s degree holders. Because the number of applicants is much higher than the number of visas available, there is a lottery process to randomly select those who will continue the process.
Are exempted from the annual cap H-1B workers whose prospect employer is an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization or a government research organization.
H1B visa application process
Before applying for an H1B visa, you must have a job offer that qualifies as a specialty occupation.
Your prospective employer must have a certified Labor Condition Application from the Department of Labor before starting the process.
The LCA must cover the details about the job, such as location, prevailing wage determination, and working conditions.
Once they have an approved LCA, these are the following steps:
- The employer prepares an H1B petition, filing Form I-129, and files it, along with paying the filing fee, to the appropriate USCIS service center
- If selected by the lottery, USCIS notifies the employer and proceeds with evaluating the application.
- The USCIS will either approve the petition, deny it or send a request for additional evidence (RFE).
Once the petition is approved, the H1B worker must proceed with H1B visa stamping.
H-1B holder’s family members
H-1B workers are allowed to bring their spouse and unmarried children to the USA, who will be granted an H-4 Visa status.
The H-4 visa does not allow its holders to engage in professional activities. However, work authorization can be granted under the EAD program.
Transitioning from J-1 to H -1B visa
The first step to transitioning from a J-1 Visa to an H1B visa, provided that you are eligible, is finding a sponsor employer to petition on your behalf and follow through with the entire process of getting an H1B visa.
Bear in mind that you will have to be selected in the H1B lottery in order to begin the application process or have a prospective employer to be exempted from the cap.
Also, it is worth knowing if your J-1 visa status requires you to follow the two years home residency requirement. If so, you have to leave the country for that period before applying for the change of status.
You must also consider the processing time for the H1B visa, as the H1B has a fairly rigid time frame from application to approval and it can take up to 6 months before you can actually start working.
Nonetheless, depending on each case, transitioning to an H1B visa status can be far more advantageous for you, especially if you have the intention of becoming a permanent resident in the US.
H-1B or J-1: which one is better?
The answer to this question is not straightforward, since each visa serves a different need.
The J-1 status provides foreign nationals with exchange opportunities in research as well as access to cultural and general educational programs, whereas the H-1B visa serves temporary high-skilled workers to work in the USA.
On one hand, the J-1 visa is easier to apply for since it is not subject to an annual cap. However, the H-1B allows their holders to stay in the USA for up to six years.
Depending on what needs and on your personal circumstances are, you can either opt between the one visa can serve you better or even explore other immigrant visa statuses available.
We can help
Both J-1 and H-1B visas have their advantages and disadvantages and deciding on which one to choose can be a challenging task.
If you are still hesitating or feeling unsure about which path to follow next, let us put our skills to work for you. We can analyze your case, identify the available options, and help you decide the safest, most cost-effective, and quickest route to success.
The Herman Legal Group has over 25 years of experience in working with U.S. Citizenship & Immigration Service. The team is friendly, professional, and wants to help. Leverage their experience for your case.
Schedule a personal consultation with Attorney Richard Herman by calling 1-800- 808-4013 or 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.
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