Can I Apply for H1B While Waiting for the J1 Waiver? - J1 Visa Waivers

Can I Apply for H1B While Waiting for the J1 Waiver?

The J1 visa is a temporary nonimmigrant visa that allows foreign nationals to live and work in the U.S. Simultaneously; they participate in cultural exchange and educational programs, including research, training, teaching, and professional development. However, after the J1 program has ended, J1 visa holders are required to return to their home country for two years before switching to another nonimmigrant visa or applying for permanent residence. One way to overcome this hurdle and remain in the U.S. is to apply for a J1 visa waiver.

The H1B visa is another nonimmigrant visa category that allows U.S. employers to hire foreign professionals with a bachelor’s degree (or higher) and who have specialized skills. Due to the more significant employment opportunities and flexibility offered with an H1B visa, you may decide that it’s a good fit for your occupational goals—but what if you’ve already applied for a J1 waiver? Can you still adjust your status? Here’s what you should know about the implications and potential challenges you may encounter in this situation.
Understanding the J1 Visa Waiver Process

As a J-1 visa holder, the two-year home residency requirement will apply to you if you meet one or more of the following criteria:

* Your home government or the U.S. government funded your J1 visa program.
* Your J1 program was in a field that appears on the “Skills List” of your home country.
* You participated in a J1 program that involved graduate medical education or training.

To overcome the two-year home residency requirement, you’ll need to obtain a J1 waiver. There are several J1 waiver options available, including:

* No Objection Statement: Your home country issues a “No Objection Statement,” stating that they have no objection to you remaining in the U.S.

* Interested Government Agency (IGA) Waiver: If your work in the U.S. is considered to be in the public interest or is requested by a U.S. government agency, you may apply for an IGA waiver; however, the interested government agency must first submit a request.
* Exceptional Hardship Waiver: You can demonstrate that fulfilling the two-year home residency requirement would cause exceptional hardship to your U.S. citizen or permanent resident spouse or child.

* Conrad State 30 Program: You’re a physician who’s completed your medical training in the U.S. and has committed to working full-time for at least three years in a designated underserved area in a participating state.

There are also additional waiver programs available for specific professions or circumstances, such as the Waiver Review Division (WRD) for medical researchers, the Delta Regional Authority (DRA) for specific states, and the Appalachian Regional Commission (ARC) for certain counties.

It’s important to understand that each type of waiver has specific requirements, procedures, and limitations, so it’s always recommended to consult with an immigration attorney to determine the most suitable waiver option for your situation.
An Overview of the H1B Visa and Eligibility Requirements

The H1B visa is a popular option for those with specialized knowledge and skills in fields such as technology, engineering, finance, and healthcare, among others. The H1B visa provides temporary employment authorization, typically for an initial period of three years, with the possibility of an extension.

To be eligible for an H1B visa, you must meet the following requirements:

1. Specialty Occupation: The job you’re being hired for must meet the definition of a “specialty occupation.” This means that the position requires a minimum of a bachelor’s degree or equivalent.

2. Educational Qualifications: You must hold the required educational qualifications for the specialty occupation. This may include a relevant bachelor’s degree (or higher) or an equivalent combination of education and work experience.

3. Employer Sponsorship: You must have a job offer from a U.S. employer willing to sponsor your H1B visa. The employer must file a petition on your behalf with the U.S. Citizenship and Immigration Services (USCIS).

4. Prevailing Wage: The employer must agree to pay you the standard wage for the specific occupation and geographical location.

5. Numerical Cap: There’s an annual numerical cap or limit on the number of H1B visas that can be issued, subject to certain exemptions. Currently, the regular cap is set at 65,000 visas per fiscal year, with an additional 20,000 visas reserved for individuals with a master’s degree or higher from a U.S. institution.

The H1B visa offers several advantages and benefits, including:

· Professional Opportunities: The H1B visa allows individuals to work in their specialized field in the United States, opening up a wide range of professional opportunities and career growth.

· Long-Term Stay: Unlike other nonimmigrant visa categories, the H1B visa allows for a maximum initial period of three years, with the potential for extensions of up to six years. This gives individuals a more extended stay in the United States than other visa categories.

· Dual Intent: The H1B visa is considered a dual-intent visa, which means that individuals can pursue permanent residence (a green card) in the United States while maintaining their H1B status. This offers a potential pathway to long-term residency in the country.

· Flexibility and Stability: H1B visa holders have the flexibility to change employers while maintaining their H1B status, provided the new employer sponsors their H1B visa. This offers greater career flexibility and stability.

· Dependents’ Benefits: H1B visa holders can bring their spouse and unmarried children under the age of 21 to the United States on H4 dependent visas. H4 visa holders can study in the U.S. and, under certain circumstances, obtain work authorization.
Applying for H1B While Waiting for J1 Waiver Approval

Depending on when your J-1 waiver was filed, you can ask your employer to apply for your H1b with consular processing with the idea that as soon as your j waiver is approved you already have your H1b case approved and can go and reenter with the H1b visa as quickly as possible. Applying for the H1b visa while waiting for the J1 waiver allows you to explore job opportunities and secure U.S. employment at an earlier stage. This is why it is very important to file for your J waiver as soon as possible.

However, it’s essential to keep in mind that filing concurrently means that you’ll have to start the H1b application process without knowing the outcome of your J1 waiver application. Additionally, if your personal or professional circumstances change significantly during the filing process, it could complicate your overall immigration strategy and require you to adjust your applications.

Also note that employers often file for change of status for former J-1s who are currently in the U.S. in F-1 status. This special strategy for former J-1s who are currently in F-1 status allows these individuals to change status even though their j waiver may still be pending.

Before making a decision, it’s essential to consult with an experienced immigration attorney who can provide personalized guidance and advice.

Navigating the complexities of the J1 waiver and H1B visa processes can be challenging. To ensure the best possible outcome, contact the Ranchod Law Group. With years of experience focusing on J1 waiver cases, we can provide invaluable assistance during the application process and increase the chances of your J1 waiver getting approved. We take time to prepare a detailed legal brief that provides compelling evidence of why your waiver should be granted, and as a result, we have a very high approval success rate.

Schedule a consultation by calling us at (916) 613-3553