Many of my foreign medical graduate clients pursue additional medical education in the U.S. on a J1 visa. The spouses of these doctors live, and sometimes work, in the U.S. on a J2 visa. As you may know, individuals on both a J1 and J2 are typically required to return to their home country for a period of two years after the expiration of their visas unless a waiver of the two year home residency requirement is approved. This post will address a change of status for a J-2 visa holder to H1B status after the approval of a J1 waiver. Note that this post assumes that you otherwise qualify for an H1B and only addresses the issue of changing status from a J2 to an H1B.
When the J-1 is granted a waiver of the two year home residency requirement based upon a commitment to work for at least three years in a federally designated medical shortage area or at a hospital operated by the Department of Veterans Affairs, the J-1 waiver also applies to you as a J-2 dependent. Previously, USCIS would approve a change of status from J-2 to H-1B as long as the J-1 waiver had been approved at the time of filing the H-1B.
Recently, however, USCIS has denied many (but not all) requests for a change of status for J-2 to any status other than H-4 (dependant of an H1B) until the J-1 has completed the three-year service requirement. It never ceases to amaze me how USCIS can arbitrarily change their policies and not abide by immigration law and regulations! USCIS is wrong in denying the requests for change of status because there is nothing in the law to support limiting a J-2 dependent to H-4 status or preventing a J-2 from acquiring status as an H-1B, O-1, or L-1 during the J-1 spouse’s three year service period. Nonetheless, USCIS continues to deny some of these change of status requests.
If USCIS denies your request, the J-2 dependant must consular process the H-1B. Alternatively, some attorneys have reported successfully filing a change of status from J-2 to H-4 status first, and then requesting a change of status from H-4 to H-1B without consular processing. However, USCIS decisions are inconsistent.
Ranchod Law prides itself in thoroughly advising all of our clients about all of their options and possible risks. Ultimately, it is up to you to decide what is the best option given your particular circumstances. Generally, we will continue to recommend that we request a change of status from J-2 to H-1B rather than requesting consular processing or first requesting a change of status to H-4, since a change of status is clearly permissible under the law. Moreover, USCIS is still, in fact, approving some of these requests. There is also currently a case pending before the Administrative Appeals Office which should bring some clarity to this problem.
If you are considering a change of status or if you have any immigration questions whatsoever please contact us at (916) 613-3553. We have offices conveniently located in Sacramento, Santa Clara and San Francisco and we remotely assist clients all over the world.