Students and Visitors
According to the U.S. Department of State, the Exchange Visitor non-immigrant visa category (J-1 visa) is for individuals approved to participate in work-and study-based exchange visitor programs. These programs include Summer Work and Travel Program and Au Pair Program. A J-1 visa lawyer can give you professional guidance.
If you have arrived in the United States with a J-1 visa, you may be able to extend your stay beyond the duration of your program by changing your J-1 status to that of B-1 (business visa), B-2 (tourist visa), F-1 (student visa), H-1B (work visa), or other. You may also have other options, including if you want to remain in the United States permanently.
Work and Travel
One of the most common J-1 visa programs is the Summer Work Travel program, which provides foreign students with an opportunity to live and work in the United States during their summer vacation from college or university to experience and to be exposed to the people and way of life in the United States. According to the Summer Work Travel program’s rules, the maximum length of the program is four months and participants must return to their home country prior to the start date of their university or college. However, if you apply for a change of status and receive the approval of the United States Citizenship and Immigration Services (USCIS), you may be able to extend your stay beyond four months.
Another well-known program within the J-1 visa category is the Au Pair program. An Au Pair is a domestic assistant from a foreign country who works for, and lives as part of, a host family in the United States, providing childcare services for the host family (up to 45 hours per week). Participants of this program can live with their host families for 12 months (with the option to extend their stay for another 6, 9, or 12 months), while studying for academic credit or equivalent at an accredited US post-secondary educational institution.
Changing Your J-1 Status
If you wish to stay in the United States beyond the duration of your J-1 visa program, you need to apply for a change of status and receive approval of USCIS.
According to USCIS, you may apply to change your status in the United States if:
- You were lawfully admitted into the United States as a nonimmigrant;
- You have not committed any act that would make you ineligible to receive an immigration benefit;
- There are no other factors that require you to depart the United States prior to making a re-entry based on a different classification (for example, a USCIS officer may determine that you should obtain a new visa prior to being readmitted into the United States);
- You submit an application for a change of status before the expiration date on your Form I-94, Arrival-Departure Record. (However, there are certain circumstances under which USCIS may excuse a late submission.)
- Your passport is valid for your entire requested period of stay in the new nonimmigrant classification in the United States.
Please note that you are not eligible to change your status if you are a J-1 Exchange Visitor subject to the 2-year foreign residence requirement. However, you may be able to obtain a J-1 visa waiver and remain in the United States.
USCIS recommends that you apply as soon as you determine that you need to change your status to a different nonimmigrant category. Until you receive approval from USCIS, you should not assume that your new status has been approved, and you should not change your activities in the United States.
If you fail to maintain your nonimmigrant status, you may be deported from the United States and/or barred from entering the United States in the future. If you are already out of status, USCIS cannot change your status unless you can prove that you have fallen out of status due to certain limited circumstances beyond your control.
Changing J-1 Status to B-1/B-2 Status (Business/Tourist Visa)
You may wish to change your J-1 status to B-1 or B-2 status (Visitor for Business or Pleasure) if you want to stay in the United States after your summer work program is over in order to travel around the country for business or as a tourist.
In order to change your J-1 status to B-1 or B-2 status (Visitor for Business or Pleasure), you have to file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit all necessary documents. Processing times may vary; USCIS recommends that you apply for a change of status no later than 60 days before your authorized stay as specified on your Form I-94 expires. You can include your dependants (spouse and unmarried children under 21) who are requesting the exact same change in nonimmigrant category on the same Form I-539.
The benefit of changing your J-1 status to B-1/B-2 status (Business/Tourist Visa) is that it allows you to travel in the United States. In most cases, you do not have to leave the United States in order to change your status, meaning that you can stay in the United States after your Summer Work Travel program is over, provided that you have applied and received approval for a change of status. You should not engage in activities permissible under your new status until the new status is approved by USCIS.
How to qualify?
Usually, in order to qualify for a B-1 or B-2 Business/Tourist Visa, you have to demonstrate that:
- You have a permanent residence outside the United States and you intend to return to this residence after your visit to the United States. You need to submit documentation to prove that you have a place of residence in your home country, and that your residence will be available to you upon your return. If you study or work in your home country, you can also show that you intend to resume your education or job upon return.
- You possess sufficient funds for traveling in the United States.
Changing J-1 visa status to F-1 status (Student visa)
You may wish to change your J-1 status to F-1 status (Student Visa) if you want to stay in the United States to engage in academic studies or language training at an accredited institution.
Generally, you can apply for an F-1 visa if you wish to attend an accredited academic institution in the United States, such as a university, college, high school, private elementary school, seminary, conservatory or other academic institutions, including a language training program. A foreign student in F-1 classification may stay in the United States for extended periods of time to complete degrees or other academic goals, and, under certain circumstances, may be allowed to work in the United States.
The benefit of changing your J-1 status to F-1 status (Student Visa) is that it allows you to pursue your course of study at an accredited institution in the United States, provided that you meet the necessary requirements of F-1 Student Visa.
In order to change your J-1 status to F-1 status, you have to file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit all necessary documents. Processing times may vary; USCIS recommends that you apply for a change of status no later than 60 days before your authorized stay as specified on your Form I-94 expires. You can include your dependents (spouse and unmarried children under 21) who are requesting the exact same change in nonimmigrant category on the same Form I-539.
You may return to your home country when your J-1 visa expires and apply for an F-1 Student Visa at a US Embassy or Consulate abroad. Alternatively, you may obtain all necessary documents for an F-1 Student Visa while in the United States. Either way, you need to you meet all F-1 visa requirements, such as applying and getting accepted to an accredited institution. You should not start your academic program until your new status is approved by USCIS.
How to qualify?
Usually, applicants must demonstrate that they properly meet student visa requirements, including:
- Have a residence abroad, with no immediate intention of abandoning that residence;
- Intend to depart from the United States upon completion of the course of study;
- Possess sufficient funds to pursue the proposed course of study.
Changing J-1 status to H-1B status (Work visa)
You may wish to change your J-1 status to H-1B status (Work Visa) if you want to stay in the United States to work for an eligible employer. Under the H-1B visa classification, an employer may sponsor temporary non-immigrant visas for alien professionals or specialty occupation workers with a bachelor’s degree or higher. The H-1B status is available for an initial term of three years and can be extended for an additional three years up to a maximum of 6 years. Typical H-1B occupations include accountants, computer programmers, architects, engineers, doctors and college professors.
If you want to change your status to that of H-1B (Temporary Skilled Professional), your prospective employer should file Form I-129, Petition for a Nonimmigrant Worker, before your Form I-94 expires.
You can apply for H-1B visa through your employer while you are in the United States, meaning that you do not need to leave the country to apply. However, you cannot begin work in the new classification until USCIS approves the change of status. If you leave the United States at the end of your J-1 visa program, you can still apply for an H-1B work visa from your home country at a US Embassy or Consulate.
If your prospective employer files Form I-129 to change your status, and your spouse and/or unmarried children under age 21 also want to change their status to remain in the United States as your dependants, they need to file a Form I-539, Application to Extend/Change Nonimmigrant Status. USCIS recommends that you file the I-129 and I-539 forms for your dependants together. Technically, however, they are separate applications; therefore, you and your family members must file all the supporting documents with each application.
How to qualify?
In Form I-129 you and your employer need to establish that:
- You will be performing the type of work covered by the new nonimmigrant classification for the petitioner;
- You personally meet the requirements for changing your status.
Additionally, you and your employer must meet all the H-1B requirements. For example, as an employee, you have to demonstrate that you have the required qualifications for the specialty occupation and the specific job offered by the employer. You also have to prove that your foreign university degree and/or work experience qualifies as the equivalent of a US degree.
You may also have other options to extend your stay in the United States after your J-1 visa program ends. If you want to remain in the United States permanently, you may also have immigration options available to you, such as applying for asylum in the United States.
Two-year foreign residence requirement
Foreign nationals entering the United States as J-1 exchange visitors may be subject to the two-year foreign residence requirement under the Immigration and Nationality Act, for one or more of the following reasons:
- The participation in an exchange program was funded by the United States Government, own government, or an international organization.
- The education, training, or skill that the individual is pursuing in an exchange program appears on the Exchange Visitor Skills List for the alien’s country.
- The individual acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
If you are subject to the two-year foreign residence requirement, you may not change your status to that of H, L, K, or permanent resident until you have fulfilled the two-year foreign residence requirement by going back to your home country or receiving a waiver of this requirement.
The good news is that if you do not wish to comply with the two-year foreign residence requirement, you may apply for a waiver under one of the five applicable grounds below:
1. No objection statement
The two-year residency requirement may be waived by providing a “No Objection Statement” issued by the home government of the exchange visitor, either through its Embassy in the United States or its designated Ministry. The statement must be issued directly to the Waiver Review Division and declare that the foreign national’s government has no objection to him or her not returning to the home country to satisfy the two-year foreign residence requirement and that the government does not object to the possibility of the individual becoming a resident of the US. Note: The law precludes the use of this option by foreign medical physicians, who acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
2. Request by an interested government agency
If an exchange visitor is working on a project for or of interest to a US Federal Government agency, and that agency has determined that the visitor’s departure for two years will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the foreign national for the sake of public interest. The agency’s request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. The exchange visitor is responsible for obtaining the request from a US Federal Government agency.
If an exchange visitor believes he or she will be persecuted based on his/her race, religion, or political opinion if he/she were to return to his/her home country, the exchange visitor may apply for a persecution waiver. This waiver requires that the exchange visitor submit an Application for Waiver of the Foreign Residence Requirement of the Immigration and Nationality Act directly to USCIS. Only if USCIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case on this basis.
4. Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor
If an exchange visitor can demonstrate that his or her departure from the United States would cause exceptional hardship to his or her US citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver. (Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship.) This waiver basis requires that the exchange visitor submit an Application for Waiver of the Foreign Residence Requirement of the Immigration and Nationality Act directly to USCIS. Only if USCIS makes a finding of exceptional hardship will the Waiver Review Division proceed with the waiver case on this basis.
5. Request by a designated State Department of Public Health or its equivalent
Pursuant to the requirements of Public Law 103-416, a foreign medical graduate who has an offer of full-time employment at a healthcare facility in a designated healthcare professional shortage area or at a healthcare facility which serves patients from such a designated area, and agrees to begin employment at that facility within 90 days of receiving such a waiver, and who signs a contract to continue to work at that healthcare facility for a total of 40 hours per week and for not less than three years, may apply for a waiver.
The exchange visitor must first apply with a state public health department which is allowed to request 30 such waivers per federal fiscal year. Five of the 30 requests may be for exchange visitor physicians who will serve at a facility which may not be located within a designated area but serves patients who live within a designated healthcare professional shortage area. The state public health department will forward the requests directly to the Waiver Review Division if it agrees to sponsor the exchange visitor for such a waiver.
Attorneys at I.S. Law Firm have helped many J-1 visa holders and other visitors to change their status, extend their visit, and remain permanently in the United States. To explore your immigration or J-1 visa options, please contact a J-1 visa lawyer at +1-703-527-1779 or via e-mail: [email protected].