How to Waive Your H1B Visa and Get an J1 Visa ?
- dimartinolaw
- 0 Comments
- 102 views
- May 8, 2024
How to Waive Your H1B Visa and Get an J1 Visa ?
Are you a J-1 visa holder who dreams of extending your stay and furthering your professional journey in the United States? Stepping from a J-1 visa to an H1B visa allows for work stability and is a way to a permanent residency transition. This article will discuss waiving your J-1 visa and moving to an H-1B visa.
We’ll go through what a J-1 and H1B visa are, followed by various visa-related questions, such as whether an H1B visa is better than a J-1 visa, and whether you can change from a J-1 to an H1B visa and more. So, let’s dive into what a J-1 visa is.
What Is a J-1 Visa?
The J-1 visa is a non-immigrant visa specially designed for individuals who plan to participate in cultural exchange programs in the U.S. Its purpose is to realize and strengthen ties with different countries through learning and cultural interchanges.
J-1 visas cover students, au-paired children, researchers, teachers, trainees, and others participating in cultural exchange programs. Program participants may arrive in America for educational purposes, internships, teaching, research, or to participate in work-related exchange programs or job training.
What Is an H1B Visa?
The H-1B Visa is a non-immigrant visa category under U.S. legislation that allows employers to seek temporary assistance from foreign workers with special skills. Such jobs are always very specialized, often in science, technology, engineering, mathematics, medicine, and business.
The H1B visa applicant must have a bachelor’s degree or higher level of education in a specialized field they intend to use in the occupation they are being hired for.
Can I Get a H1B Visa Without a Sponsor?
No, you cannot obtain an H-1B Visa if you do not have an employer to sponsor you. An H-1B visa is an occupation-based visa that requires the employer of the United States to sponsor you to get a specific job position. An employer must show that the position requires specialized knowledge and that you, as a candidate, have the necessary skills to complete the given task.
The employer is the first to initiate the whole H-1B visa application and file a petition on behalf of the employee. This petition includes details about job duties, the employer’s need for a foreign worker, the employee’s qualifications, the Labour Condition Application (LOC), and Form I-129.
If the petition gets approved and you are outside of the U.S., you should apply for an H-1B visa from the U.S. Consulate or Embassy in your home country before entering the U.S. If you are already within the country in another status, e.g., on a different visa or as a student, there is a probability of being able to apply for the change of status into H-1B without leaving the country.
What Jobs Qualify for an H-1B Visa?
Jobs approved for H-1B visa status are usually represented by the one that requires the employee to have expert knowledge and not less than a four-year degree course or its equivalent in a particular field. Standard fields that qualify for H-1B visas include the following:
- Scientists, researchers, biotechnologists, chemists, and other scientific professionals.
- Programmers, application developers, systems analysts, computer consultants, and ICT specialists.
- Engineering branches, such as mechanical engineering, electrical engineering, civil engineering, and aerospace engineering.
- Mathematical scientists engaged in tasks such as statistical analysis and actuarial work.
- Doctors, nurses, pharmacists, medical researchers, and other healthcare professionals.
- Professionals in technical fields, such as finance analysts, economists, management consultants, and others who work in the business world.
- College teachers, scientists, and other knowledgeable specialists of higher educational institutions.
- Urban architects, planners, landscape architects, and designers.
Is an H-1B Visa Better Than a J-1 Visa?
Whether an H-1B or J-1 visa is better depends on your choices, plans, and personal preferences. Here are some factors to consider when comparing the two visas:
1. Employment Opportunities
H-1B visas give a chance to work in the U.S. for a long time along with stability. One can eventually receive a green card. On the other hand, J-1 visas are usually for temporary exchange programs with specified completion dates. However, if one intends to get employed or reside in the USA, an H-1B visa is a better choice.
2. Specialization and Education
An H-1B visa is typically for those with specialized abilities and education in particular disciplines. In contrast, a J-1 visa is for exchange plans that cover a wide range of areas, including education, research, training, and cultural exchange. In such cases, you may opt for an H-1B visa if you are gainfully employed in the United States.
3. Home Residency Requirement
J-1 visa holders must return to their country of residence and stay there for 2 years after completing their cultural program visit in the US. However, there is no such requirement for the H1-B visa.
4. Flexibility and Duration
Employment for H-1B visas often allows longer stays in the U.S. than in the case of J-1 visas, which are usually tied to the duration of a given program. H-1B visa holders can transfer to other organizations (with some restrictions) or extend their stay beyond the first term, i.e., their visa period.
Can I Change from a J-1 to an H-1B Visa?
Switching from a J-1 visa to an H-1B visa is possible, but only when a set of documentation is available. Here’s a general overview of certain conditions under which you can change a J-1 visa into an H-1B visa.
1. J-1 Waiver (if applicable)
Sometimes, obtaining a J-1 visa waiver is necessary to change the status from J-1 to H-1B. Waivers are available to individuals or employees who can demonstrate that the return to their country of nationality would result in exceptional hardship and persecution.
2. Job Offer and H-1B Sponsorship
Changing to an H-1B visa requires having a job offer from the U.S. employer while he/she is ready for the sponsorship process. The company where you have the job has to file an H-1B petition about you. In the petition, they have to state that the position needs specialized knowledge and that you meet the education requirements.
3. H-1B Visa, Lottery Slot, and Approval
After filling out the H-1B petition, your application is processed by USCIS. There are a lot of applications received by the USCIS every year. So, your visa will be processed either under the available slots or the lottery slots (with extra visa slots available).
4. Change of Status or Visa Stamping
When your visa is successfully processed by USCIS, you can change your visa status from J-1 to H1B. If you are already a J-1 category visa holder in the U.S., you can change your visa status to H-1B while living in the country. If you are outside the U.S., you should apply for an H1B visa at a U.S. Consulate or Embassy in your homeland
Can I Apply for an H-1B Without a J-1 Waiver?
If the requirements state that you should be physically present in your home country for two years, you cannot file a petition for an H1B visa without a J-1 waiver. In such a condition, it becomes necessary to obtain a J-1 waiver.
Furthermore, your home country with a no-objection certificate or the U.S. government under established law may approve a waiver.
If you try to file a petition for an H-1B visa without a waiver, the probability of rejection is high.
Can I Apply for a Permanent Residency (Green Card) While on a J-1 Waiver?
Anyone on a J-1 waiver can apply for a permanent residency, i.e., for a green card. Still, there are several factors to consider:
1. Employment-Based Green Card
If you get a job opportunity from a U.S. employer, you can apply for a green card and work in the U.S. However, your employer must provide a Labour Certificate stating that you possess exceptional skills and knowledge required for the job.
2. J-1 Waiver Conditions
If you have obtained a J-1 waiver and fulfilled all the requirements, you can receive a green card by submitting your immigrant petition, approved J-1 waiver, and a copy of your application for an H-1B visa.
3. Adjustment of Status
If you have an approved I-140 petition (Immigrant Petition for Alien Workers), you can apply for a change in status from a J-1 visa or any other temporary visa to permanent residency.
Can I Change from J-1 to F-1 Without a Waiver?
It is not possible to change the visa status from J-1 to F-1 without a waiver. If you want to change your J-1 visa to an F-1 visa, you must stay in your home country for two years or apply for a waiver.
If the condition of returning to your home country for a period of two years is not applicable, you can apply for the change in status without a waiver.
What Is the 2-Year Rule for J-1?
A regulation, commonly known as a Two-year rule, pertains to J-1 visa holders. The “Exchange Visitor Program” administered by the Department of State of the United States of America.
According to this rule, the J-1 visa holders should return to their home country after the exchange program. They can get H-1B (Non-Immigrant Work Visa), L-1 (Non-Immigrant Visa for Intracompany Transferees), and K-1 (Non-Immigrant Visa for Fiance) visas, change their status to non-immigrant, or apply for permanent residency not earlier than 2 years after the completion of an exchange program.
The individuals subject to the two-year rule fall into one or more of the following categories.
- The people who came with complete or partial scholarships funded by the U.S. government or their home country’s government.
- Participants in highly specialized projects.
- Residents of the postgraduate medical education or training programs.
Are J-1 Waivers Exempt from the H-1B Cap?
J-1 waivers are not bound by the H-1B cap. They refer to people who have obtained a waiver issued as an exemption to the condition of residence in J-1 visas. This credit went not only to the regular H-1B cap but also to the addition of 20,000 visas for graduates holding advanced degrees from U.S. institutions (known as the master’s cap).
In such a situation, the J-1 visa holder with a waiver from the physical homestay requirement can make an H-1B application without necessarily filling up extra slots. Such benefits can add flexibility and allow people and visitors (from exchange programs) to continue their lives in the U.S. after completing their J-1 exchange programs.
Get an H-1B Visa With the Help of Experienced Immigration and Naturalization Lawyers
Moving from a J-1 visa to an H-1B is a complex process as it requires an individual to stay in their home country for 2 years before applying for a change in visa status. If you get a J-1 waiver or obtain a no-objection statement, you can easily apply for an H-1B visa.
Getting a waiver is not easy; it is one of the most challenging and complex tasks. To simplify this complex task, you can seek the help of a law firm specializing in immigration and naturalization processes, such as Di Martino Law Group.
FAQs
1. What are the requirements for an H1B visa?
An applicant must hold a bachelor’s or master’s degree.
2. What is the advantage of an H1B visa?
The advantage of an H-1B visa is that it provides several career opportunities and helps get permanent residency status in the U.S.
3. How much time does a J-1 visa application take to process?
The J-1 visa application process usually takes 8 to 13 weeks.
4. How much time does it take to change the visa status from J-1 to H1B?
The average time required for a change in visa status from J-1 to H-1B is 3-5 months. Depending on the individual’s circumstances and application process, it can take more or less time than expected.
5. Is there any specific requirement for the J-1 visa?
The J-1 visa should be sponsored by a non-personal source, sponsors, or exchange program.