A J1 to H1B visa transfer can be an attractive option for an exchange visitor who wishes to take up temporary employment in the US. To transfer, you will need to make a change of status application.

 

What is a J1 to H1B transfer?

 

Applying to change status from a J-1 exchange visitor to an H1B worker offers many benefits.

The H1B visa is used by US employers to recruit foreign graduate and specialist employees. It is a non-immigrant, temporary worker visa which requires an offer of employment from a US employer. An H1B visa permits the holder to stay and work in the USA for up to three years, with the option of extending your stay to a total of six years, provided you continue to hold qualifying employment.

Where most temporary workers must prove their intent to return home at the end of their visa, an H1B visa allows for ‘dual intent’, that is, the opportunity to hold temporary employment in the US while also petitioning for permanent residence.

H1B status holders may become eligible for a Green Card and permanent residency if they stay and work in the US for the six-year maximum allowed under the H1B visa.

With H1B status, your spouse and children may accompany you to the US under an H-4 visa. This status will remain valid for the duration of your H1B visa. As H-4 visa holders, your spouse may also apply for an employment authorization document (EAD) to take up employment in the US for the length of your H1B visa.

 

J1 to H1B transfer requirements

 

J1 waiver: your current status

 

Many J1 visa holders are subject to a two-year home residency requirement under Section 212(e) of the Immigration and Nationality Act. This rule means that certain J1 holders must return to their home country for a minimum of two years after their program ends before they can apply for specific visa categories, such as an H1B or green card.

The home residency requirement applies to individuals whose programs were funded by their home government or the US government, those involved in programs on the skills list designated by their home country, or those participating in medical training programs. The main risk of this requirement is that it can prevent J1 holders from remaining in the US or changing status without fulfilling the residency period or obtaining a J1 waiver.

However, you may be able to apply for the J1 visa residency requirement to be waived if you can satisfy one of the following conditions:

 

• No Objection Statement – this is a letter from USCIS or other US governmental body stating that they have no objection to a waiver being granted.
• Interested Government Agency in the US – this is a request made by a Government agency on your behalf.
• Claim of Persecution – this is a statement by you that you will face persecution should you return to your home country and that you are therefore seeking asylum in the US.
• Claim of Exceptional Hardship – this is a statement by you that if you return to your home country, considerable hardship will be caused to a US permanent resident spouse or child, or a US citizen spouse or child, as a result.
• Request from Designated State Health Agency – this is a request made by a designated state health agency for you to remain in the US because you are a physician.

 

Without careful planning, visa holders risk overstaying or losing eligibility for future visa options, making proper timing and understanding of the waiver process are essential to avoiding potential legal issues.

 

Eligibility for an H1B visa

 

Your eligibility for an H1B visa rests on having an offer of employment in an eligible role from a US employer and on meeting one of the following:

 

• You must have completed a bachelor’s or higher degree in the related speciality occupation from an accredited US educational institution, or have completed an equivalent foreign degree in the speciality occupation.
• You must hold an unrestricted state licence, registration or certification which gives you permission hold a job in the speciality occupation, in the US state where the employment will take place.
• You must have the education, training or experience in the related speciality equivalent to a degree and have been recognised as having a suitable level of expertise in the speciality.

 

For a job to be eligible for an H1B visa, one of the following conditions must apply:

 

• The job must have a minimum entry requirement of a bachelor’s degree or higher degree, or equivalent.
• It must be usual within the related industry to require a degree for this job, or the job must be sufficiently complicated or unique that it can only be carried out by a person who has a degree.
• The employer requires a degree or equivalent to fulfil the job.
• The duties involved in the job are so complex and specialised that they require a knowledge level generally associated with a person who holds a bachelor’s or higher degree.

 

 

H1B Annual Cap

 

A key consideration will be the likelihood of being granted an H1B visa. Each year, there are many more petitions submitted than there are H1B visas available. The limit on the number of H1B visas made available each year means there are no guarantees that your application will succeed in the H1B lottery.

The H1B annual visa cap limits the number of H1B visas that are made available each year. The regular cap is 65,000, with an additional 20,000 visas available to applicants holding a master’s degree.

Under a new process, H1B sponsors are required to submit an electronic registration for each worker they intend to sponsor under the H1B route. Where the number of registrations exceeds the cap by the end of the submission period, a random selection of registrations will be selected and invited to submit a full petition.

There are a number of cap-exempt categories of employer. These are:

 

• Higher education institutions
• Non profit organisations associated with a higher education institution
• Non profit research organisations
• Government institutions or bodies

 

A petition made by an exempt employer will not be added to the cap but will be subject to the same eligibility checks as any other H1B petition.

 

J1 to H1B transfer process

 

To transfer your J1 visa to an H1B visa:

 

• You must obtain a job offer from a US employer before you can apply.
• You must go through the H1B visa application process.

 

Firstly, your employer must submit a Labor Condition Application (form ETA-9035) to the United States Department of Labour to be certified.

The Labor Condition Application (LCA) lays out the employer’s agreement to:

 

• pay you a wage that is not less than that paid to similarly qualified workers, or if more, to pay you a wage that is the generally accepted wage for such a position locally
• provide you with working conditions that will not have a detrimental effect on other similarly employed workers

 

Once the LCA has been certified, the employer should submit a Non-immigrant Worker Petition (form I-129) along with the certified LCA to the relevant USCIS Service Centre.

An employer should not submit a petition more than six months before the intended employment is due to start.

Unless the employer fits one of the exempt categories mentioned above, the H1B petition will be entered into the annual cap.

Once the 65,000 cap has been reached, 20,000 petitions will be randomly selected from the Masters cap, with any that are not selected returning back into the regular cap from which a random selection is then made.

The selected registrations will then be invited to submit their full petition within 90 days, which will be examined by USCIS and immigration officials, possibly requesting further information.

Should the H1B petition be approved, you may apply for your visa through the Online Non-immigrant Visa Application system (form DS-160).

Should the H1B petition be rejected, it is possible to apply again the following year, although you and the employer should do your best to ensure that any reasons for rejection are addressed.

 

J-1 to H-1B processing time

 

Rigid timeframes apply when applying to change status to the H-1B category. The filing window for the H-1B lottery is fixed, and regardless of whether you opt to pay for premium processing for a 15-day decision on your H-1B petition, unless cap-exempt, you will still be required to wait from April til October 1st to be able to start your H-1B sponsored employment,

 

Who pays for the H1B visa application?

 

There are numerous costs associated with the H1B application process, some of which will be paid by the employer or sponsoring company, while others will be the responsibility of the employee.

The employer is legally required to pay the following petition fees:

 

• Basic Filing Fee
• ACWIA Fee
• Fraud Prevention and Detection Fee
• Fee relating to Public Law 114-113
• Asylum Program Fee for certain applications, such as H-1B petitions Subject to the H-1B cap

 

The employee has the responsibility of paying for their visa application at their local US embassy or consulate.

Should the H1B premium processing option be used, the employer and employee will need to agree who is to pay.

 

Need assistance?

 

NNU Immigration are a team of dedicated US immigration attorneys. We can advise on the immigration options open to you in your circumstances, whether that is to transfer to an H1B visa or find an alternative to suit your needs. We will support you through the application process providing guidance on the documents to be submitted. If you have a question about US immigration, contact us.

 

J1 to H1B  FAQs

 

What is a J1 to H1B transfer?

A J1 to H1B transfer refers to the process of changing from a J1 exchange visitor visa to an H1B work visa through employer sponsorship.

 

Do I need a J1 waiver to apply for an H1B visa?

If your J1 visa is subject to the two-year home residency requirement you must obtain a J1 waiver before applying for an H1B visa unless you fulfill the requirement by returning to your home country.

 

How do I know if I am subject to the two-year home residency requirement?

You can check your J1 visa stamp and Form DS-2019 which will indicate if you are subject to the two-year home residency rule.

 

How can I apply for a J1 waiver?

You must submit a waiver request to the Department of State and choose an applicable waiver category such as the no objection statement hardship waiver or persecution waiver.

 

Can I apply for an H1B visa while my J1 waiver is pending?

Your H1B petition cannot be approved unless your J1 waiver is granted or you have fulfilled the two-year home residency requirement.

 

Does my employer need to sponsor me for an H1B visa?

Yes an employer must file an H1B petition on your behalf including an approved Labor Condition Application from the Department of Labor.

 

When can my employer file my H1B petition?

If you are subject to the H1B cap your employer must file during the H1B lottery period typically in March. If you qualify for a cap-exempt H1B such as employment with a nonprofit or university your petition can be filed at any time.

 

What is the H1B lottery and how does it affect my application?

The H1B lottery is a random selection process that occurs when the number of H1B applications exceeds the annual cap of 85000 visas. If selected your employer can proceed with filing your full H1B petition.

 

Can I stay in the US while my J1 to H1B transfer is pending?

If your J1 visa has not expired and you have maintained status you can remain in the US. However if your J1 status expires before your H1B is approved you may need to leave and re-enter with an H1B visa stamp.

 

What if my J1 to H1B transfer is denied?

If your transfer is denied you may need to leave the US when your J1 status expires. You can explore other visa options or reapply with a stronger application.

 

Can I switch employers while transferring from J1 to H1B?

Your H1B petition is employer-specific. If you change employers you must file a new H1B petition and may need to go through the lottery process again unless you are cap-exempt.

 

Can I travel outside the US while my H1B petition is pending?

Travel is generally not recommended while your H1B petition is pending as it may affect your change of status request. If you leave the US you may need to obtain an H1B visa stamp before re-entering.

 

How long does the J1 to H1B transfer process take?

Processing times vary based on waiver approval employer filing timeline and USCIS processing speed. The entire process can take several months to over a year.

 

Can my spouse and children stay in the US during my J1 to H1B transfer?

If your family is on J2 status they may remain in the US while your transfer is pending. Once your H1B is approved they may need to change status to H4 dependent visas.

 

Glossary

 

Term	Definition
J1 Visa	A nonimmigrant visa for exchange visitors including students researchers and professionals participating in US government-approved programs
H1B Visa	A nonimmigrant work visa that allows US employers to hire foreign workers in specialty occupations
J1 Waiver	A waiver that exempts J1 visa holders from the two-year home residency requirement allowing them to apply for an H1B visa or other status
Two-Year Home Residency Requirement	A rule that requires certain J1 visa holders to return to their home country for two years before applying for an H1B or green card unless a waiver is granted
Form DS-2019	A document issued to J1 visa holders that provides program details and states whether the visa holder is subject to the two-year home residency rule
No Objection Statement	A type of J1 waiver where the home country government states it has no objection to the applicant staying in the US
H1B Lottery	A random selection process used when the number of H1B applications exceeds the annual cap of 85000 visas
Cap-Exempt H1B	An H1B visa that is not subject to the annual cap usually for jobs with universities nonprofits or research institutions
Labor Condition Application LCA	A document employers must file with the Department of Labor before sponsoring an H1B visa confirming wage and working conditions
Change of Status	A process that allows a visa holder to switch from one visa category to another without leaving the US
USCIS	US Citizenship and Immigration Services the agency that processes H1B petitions and other immigration benefits
Consular Processing	The procedure of applying for a visa at a US consulate or embassy abroad when a change of status from J1 to H1B is not possible within the US
Premium Processing	A USCIS service that expedites H1B visa processing for an additional fee providing a decision within 15 calendar days
Request for Evidence RFE	A notice from USCIS asking for additional documents or information before making a decision on an H1B petition
H4 Visa	A dependent visa for the spouse and children of an H1B visa holder