Few thoughts....
As far as a J1 visa goes the only option is to get a waiver before changing status (PR, H1, etc…). The other (remote option quite hard to get) is to consider an O1 (Alien with extraordinary abilities). See my post on the O1 forum.
As far as your situation goes here are few thoughts,
Once your J1 program ends, there is no way to extend it (there are few situations where an extension could be requested and approved-this applies mostly to students-but others too-case by case).
In your case the waiver application does not provide you with legal coverage to stay in the US till you get an answer (usually people are considered legal when they have a pending case with immigration. This does not apply to J1 waiver application-but please double check).
If you apply for an H1 visa now, while you’re waiting on the waiver (this is a good option to keep your legal status-provided your employer agrees. They would usually refuse).
In most case the USCIS will find out about your H1 visa application under J1 status (Not allowed unless a waiver was approved) . One of three things will happen:
1. Your H1 gets denied and you’ll have to leave in 30 days (This could happen, but very remote. USCIS are known to be lenient and would always give you a chance to do things right).
2. USCIS will; ask you for the waiver and give you some time (~280 days, please confirm this) to respond and provide one, this is the most likely course.
3. They will approve your H1 (by mistake) in some cases the adjucating officer simply overlooks your J1 status (by mistake-they will never approve your case if they find out you’re on a J1 unless you get a waiver). In this case you can go on working on H1 but eventually the J1 status will catch up with you and you’ll be in some trouble with USCIS, unless you get lucky and you get a waiver before your H1 extension or PR application (There is some risk to this and I recommend you do it right from the beginning). If you get a waiver before your H1 case is closed send it to USCIS as an amendment.
A friend of mine got his H1 while on J1 status and with no waiver, but he got the waiver afterwards and he was fine from there on, I even think he applied/got PR now.
In most case when changing from one status to another (from J1 to H1 for example) you’ll have to do it outside the US (home country of origin). However, I heard that third country visas are allowed now across the border. However, in some cases the USCIS will renew your I-94 and you don’t have to leave the country, unless you want to and in such case you’ll have to renew your visa. I do not know about how hard it is in India, but people can now do it in Mexico or Canada (case by case. Few people did in one day and few got stuck for very long time).
Overall, you should expect a waiver to take about 4 to 6 months total (and may be more-problematic cases-missing paper, etc…) and may be less (few people got their in less than two months total). The nice thing is once the DOS approves your case you can use the approval letter to do whatever, provided you eventually get the USCIS approval. You said your paper reached DOS, did your ‘No Objection’ statement reached the DOS too? If so, expect a decision in about 4-8 weeks or so the DOS says. Search this forum, people had posted their time line with DOS/USCIS.
Technically, you can apply for an H1 visa (PR, etc…) with no waiver, but eventually you’ll have to provide one to finalize the paper work (USCIS will ask for it). This is only good if you’re about to get the waiver, sure of getting it, got the DOS approval, etc…. other wise the USCIS will give you only few months to get a waiver or leave.
So in your case, and if your employer agrees you should consider applying for an H1 now, but do not do it premium processing. take the longer slow route to buy time for your waiver.
Good luck,
mkdg said:
I am a physician and have applied for a j1 waiver thro VA. I complete my clinical fellowship on Nov 30th and have a 30 day grace period till dec 30th to stay in the US.
1) Can anybody advise me on the options available if my J waiver does not come thro by that time and how to extend my stay in the US
2)Will I have to leave the country and get my H visa stamped in India ... if so, is this a problem to get the h visa stamped in India
3) my papers have reached DOS this week. that gives me about 6 weeks till my grace period ends on 30th Dec. Any ideas on the time required from her on to get the waiver or atleast the letter recommending the waiver from DOS?
4) Has anybody have experience?suggestions with applying for a H visa before the actual waiver or recommendation from DOS arrives?
Please reply. Any suggestions/advise/previous experiences will be really helpful!
Thank you
