How to Transfer Status from J1 to H-1B
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.
J1 to H1B visa transfer: Why apply for a change of status?
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.
Key considerations of transferring from J1 to H1B
J1 waiver: your current status
A home residency requirement may be attached to certain visas. It requires that you return to your home country at the end of your visa for a prescribed period of time.
Where your J1 visa has a two-year home residency requirement, you must return to your home country at the end of your period of J1 status and reside there for two years before you can apply for any further work-based US visa.
However, you may be able to apply for this 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.
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.
How to transfer your J1 Visa to an H1B Visa
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.
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
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.
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.
This article does not constitute direct legal advice and is for informational purposes only.