J1 Waiver + H1B

S

sunny1971

Registered Users (C)
Hello friends,

I need your urgent assistance with a few questions related to J1 waiver and H1b filing status and would really appreciate all your possible help:

Our case is as follows:

My wife is on J1 visa (research scholar) and Im on J2 with work auth. She has been in US for 3 years now and J1 validity is for a total of 5 years. However her current DS2019 is upto June 07 and her employer has said that he does not have funds to continue beyond June 07 and that she must start looking for another job.


I am also trying to get an H1B visa (hospitality industry - hotels) and have an interested employer.


Now the questions that I have are as follows:



- J1 waiver: if my wife applies now (in next 2-3 days) for waiver (she already has the No objection certificates from home country--this would save time), how long it will take for approval. Will we get the approval by the time the H1B filing lasts (last year it got exhausted in May26th)

- What are the chances of getting the waiver...since she herself does not actually require the waiver, but for me to get H1B, a waiver is required.

- Statement of reason for J1 waiver: What reason should she give for asking for waiver? (is it ok to mention that spouse’s H1B is tied to it) i.e I am trying to get H1B sponsorship which is only possible on approval of waiver.

- At what stage of the waiver can my wife apply for her H1B status and/or extension in her program/ look for another job.

- Upon submission of J1 waiver application, can H1B employer (for me) file petition for H1B visa?

- If Waiver is denied----will my wife's J1 program continue and for the full duration of 5 years period?

- Does DOS check with University about the remaining duration of program. What if Univ says that program funds are not sufficient to continue….will the waiver still be processed on the basis that 1.5 years are still remaining in J1 program and that she can find another position

- Once waiver is filed and not approved by the last H1B petition date (in my case)…..can we request for discontinuation of waiver processing so as to remain on J1 and thus I can maintain J2 status.

I know these are a LOT of questions.....but any help with any question will really assist us........ :confused:

I look forward to your advise.
 
Answers

First of all, what do you mean when you say that your wife does not actually require the waiver? If she is not subject to the 2-year home residency requirement, then neither are you. In which case, you can apply for the H-1B on April 1. If you require a waiver because you yourself were once on a J-1, then you should apply for the waiver based on your previous J-1, not her. Or perhaps you mean that she IS subject to the HRR but doesn't need the benefits of a waiver right now, but you do?

In that case, here are some answers to your questions point by point:
1- Approval can take anywhere from few weeks to few months. It takes 2-3 weeks (normally) for your case to show up online after the lock box in St Louis has received it. It takes a similar amount of time for the embassy's no objection statement to be received (even longer if your embassy uses regular mail instead of courier). Once these items are received, processing these takes can be as short as a day and as long as 2 months.

2- Chances of her getting a waiver: if she has a no objection statement, and she does not have a US sponsor, chances are favorable.

3- Statement of reason: If SHE is applying for the waiver, it should be HER reasons not yours. People normally write about their productivity in the US and how leaving would adversely affect their research/career goals/family life/etc. Be sure to mention that you are getting a no objection statement from your government also. Saying that she wants a waiver so that her husband can get an H-1B is not recommended.

4- At what stage: Not a simple question. You wife can apply for an H-1B as soon as she receives the favorable recommendation from the DOS. She does not have to wait until the final approval from USCIS. The same goes for you; you can apply for your H-1B when she gets the DOS recommendation. She CANNOT extend her J-1 status, or look for another J-1 sponsor, once she has applied for, or received, a waiver. So if she starts her waiver process, it is pretty much guaranteed that she will not be allowed to extend/transfer her J-1 status, especially after the waiver is approved.

5- See #4, your employer can submit H-1B papers only after your wife receives the DOS favorable recommendation, not before. If you apply soon, chances are good (but not excellent) that the DOS recommendation will be received by April 1.

6- If waiver is denied, some programs (like mine, for example) will refuse to extend the J-1 status because, by applying for a waiver, one has signaled intent not to comply with the conditions of the J-1 exchange program. It may also be problematic to renew a J-1 visa abroad and/or be admitted by the border agent into the United States as a J-1 scholar if your record shows that you applied for a waiver, since the evidence showed that you did not want to comply with the program.

7- Unless your wife is funded directly by the US government, the DOS will normally not check with the university. That the university does not have funds has nothing to do with the J-1 waiver; since the J-1 waiver is the business of the J-1 scholar only. The DS-2019 form will tell the DOS whatever it needs to know. As far as the DOS is concerned, if there is no DS-2019 form valid after June 07, whatever the reasons (it doesn't care), then the exchange program is terminated in June 07.

8- You may withdraw the J-1 waiver request while it is processing, and thus remain in J-1/J-2 status. You cannot withdraw a request AFTER the waiver has been approved or not approved. If you get a denial, you cannot then withdraw your application, that makes no sense! If you get denied, your only options are to 1- leave the country, 2- look for some other non-immigrant status for your wife such as O-1 visa (but you cannot work), or 3- apply for a J-1 waiver under another category if applicable.

Good luck.
 
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Many thanks for your response jk0274. It sure was very helpful. After going through so many other portals finally I've found the right one which provides precise & detailed information. I appreciate your help.

Regarding Waiver, what i meant by saying that actually my wife does not require a waiver is as follows: When my wife came to US, the J1 visa program was not for 5 years. It was for 3 years with 1/2 year extension and then a waiver had to be applied for continuation. She definitely has the 2 yr HRR on her program. But now since the J1 program has been made till 5 years, she really does not need to apply for waiver "NOW" since she still has 1.5 years left (before she completes 5 years). She could have applied for waiver sometime next year as well. However, to get H1B for myself she would need to apply for waiver NOW. I hope I was able to clarify.

But tell me something....If she applies for waiver now, can the DOS turnaround and say that you still have 1.5 years on J1, so why do you need waiver now? Could they deny it on this basis? Because the reasoning that she needs to stay longer in US to complete her research etc will not hold good, since she still has 1.5 yrs left...So why does she need it right now? One reason like you said could be" since she already has the No objection certificates, she did not want to wait till last moment to file for waiver...Just being proactive" ....but i hope they dont delay the waiver because of this reason thinking that she is in no great hurry for waiver and they can take their own sweet time.

Another question....How easy or difficult is it to convert from my J2 to J1 (18 months visa for business trainees), is there any cap on this and is a waiver required for this too?

H1B transfer: I know Im jumping the gun, but once my H1B gets through...how early can I transfer to another H1B sponsorer (is it easy...is it also based on H1B CAPS), for instance I get an H1B employer now but hes paying me a very low salary....how sooner or later can I apply to another H1b employer who is willing to file for my transfer.

Sorry...but 1 last question: Can H1B and Green card petition be filed simultaneously and if yes, how long does it take to get the GC approved.

Many many thanks for all your help which nis extremely informative. Are you a legal attorney by any chance? coz ur knowledge is quite intense.

I awiat your response
 
jk0274 said:
First of all, what do you mean when you say that your wife does not actually require the waiver? If she is not subject to the 2-year home residency requirement, then neither are you. In which case, you can apply for the H-1B on April 1. If you require a waiver because you yourself were once on a J-1, then you should apply for the waiver based on your previous J-1, not her. Or perhaps you mean that she IS subject to the HRR but doesn't need the benefits of a waiver right now, but you do?

In that case, here are some answers to your questions point by point:
1- Approval can take anywhere from few weeks to few months. It takes 2-3 weeks (normally) for your case to show up online after the lock box in St Louis has received it. It takes a similar amount of time for the embassy's no objection statement to be received (even longer if your embassy uses regular mail instead of courier). Once these items are received, processing these takes can be as short as a day and as long as 2 months.

2- Chances of her getting a waiver: if she has a no objection statement, and she does not have a US sponsor, chances are favorable.

3- Statement of reason: If SHE is applying for the waiver, it should be HER reasons not yours. People normally write about their productivity in the US and how leaving would adversely affect their research/career goals/family life/etc. Be sure to mention that you are getting a no objection statement from your government also. Saying that she wants a waiver so that her husband can get an H-1B is not recommended.

4- At what stage: Not a simple question. You wife can apply for an H-1B as soon as she receives the favorable recommendation from the DOS. She does not have to wait until the final approval from USCIS. The same goes for you; you can apply for your H-1B when she gets the DOS recommendation. She CANNOT extend her J-1 status, or look for another J-1 sponsor, once she has applied for, or received, a waiver. So if she starts her waiver process, it is pretty much guaranteed that she will not be allowed to extend/transfer her J-1 status, especially after the waiver is approved.

5- See #4, your employer can submit H-1B papers only after your wife receives the DOS favorable recommendation, not before. If you apply soon, chances are good (but not excellent) that the DOS recommendation will be received by April 1.

6- If waiver is denied, some programs (like mine, for example) will refuse to extend the J-1 status because, by applying for a waiver, one has signaled intent not to comply with the conditions of the J-1 exchange program. It may also be problematic to renew a J-1 visa abroad and/or be admitted by the border agent into the United States as a J-1 scholar if your record shows that you applied for a waiver, since the evidence showed that you did not want to comply with the program.

7- Unless your wife is funded directly by the US government, the DOS will normally not check with the university. That the university does not have funds has nothing to do with the J-1 waiver; since the J-1 waiver is the business of the J-1 scholar only. The DS-2019 form will tell the DOS whatever it needs to know. As far as the DOS is concerned, if there is no DS-2019 form valid after June 07, whatever the reasons (it doesn't care), then the exchange program is terminated in June 07.

8- You may withdraw the J-1 waiver request while it is processing, and thus remain in J-1/J-2 status. You cannot withdraw a request AFTER the waiver has been approved or not approved. If you get a denial, you cannot then withdraw your application, that makes no sense! If you get denied, your only options are to 1- leave the country, 2- look for some other non-immigrant status for your wife such as O-1 visa (but you cannot work), or 3- apply for a J-1 waiver under another category if applicable.

Good luck.
Click to expand...
Many thanks for your response jk0274. It sure was very helpful. After going through so many other portals finally I've found the right one which provides precise & detailed information. I appreciate your help.

Regarding Waiver, what i meant by saying that actually my wife does not require a waiver is as follows: When my wife came to US, the J1 visa program was not for 5 years. It was for 3 years with 1/2 year extension and then a waiver had to be applied for continuation. She definitely has the 2 yr HRR on her program. But now since the J1 program has been made till 5 years, she really does not need to apply for waiver "NOW" since she still has 1.5 years left (before she completes 5 years). She could have applied for waiver sometime next year as well. However, to get H1B for myself she would need to apply for waiver NOW. I hope I was able to clarify.

But tell me something....If she applies for waiver now, can the DOS turnaround and say that you still have 1.5 years on J1, so why do you need waiver now? Could they deny it on this basis? Because the reasoning that she needs to stay longer in US to complete her research etc will not hold good, since she still has 1.5 yrs left...So why does she need it right now? One reason like you said could be" since she already has the No objection certificates, she did not want to wait till last moment to file for waiver...Just being proactive" ....but i hope they dont delay the waiver because of this reason thinking that she is in no great hurry for waiver and they can take their own sweet time.

Another question....How easy or difficult is it to convert from my J2 to J1 (18 months visa for business trainees), is there any cap on this and is a waiver required for this too?

H1B transfer: I know Im jumping the gun, but once my H1B gets through...how early can I transfer to another H1B sponsorer (is it easy...is it also based on H1B CAPS), for instance I get an H1B employer now but hes paying me a very low salary....how sooner or later can I apply to another H1b employer who is willing to file for my transfer.

Sorry...but 1 last question: Can H1B and Green card petition be filed simultaneously and if yes, how long does it take to get the GC approved.

Many many thanks for all your help which nis extremely informative. Are you a legal attorney by any chance? coz ur knowledge is quite intense.

I awiat your response
 
Response

I try to be as helpful as I can, but please remember that this forum is not a substitute for proper legal advice ;) No, I'm not an attorney.

1- It sounds to me that you might be confused about something, if I'm understanding you correctly: You say your wife's J-1 validity is 2 more years, but her current DS-2019 expires in June 07. If your wife cannot get a new DS-2019, then her J-1 validity is only until June 07, not two more years. It does not matter what her visa says, what matters in the date on her DS-2019. If she cannot extend her DS-2019 or transfer to a new institution that will give her a new DS-2019 before July 07 (June + one month grace period), you both will be out of status. Her last day of working in her current job is the last day your EAD is valid. If she terminates her program before June 07, you will immediately have to stop working, and you both will have 30 days to either leave the country or obtain a new immigration status.
Again, the date on the DS-2019 is the important one, not the date on her visa.

2- If she applies for a waiver now, and her last DS-2019 is valid only until June 07, please note that she will not be able to get a new DS-2019 if she obtains a J-1 waiver, and will have to stop working when her current expires. She will have to stop working anyway if her DS-2019 expires even if she doesn't apply for a waiver. This means that after July 07 you both will be out of status unless you have another immigrant status.

3- If you successfully apply for H-1B in April, you won't be able to start work until October 1. Once her DS-2019 expires in June 07, you both must stop working. So you will be out of work for at least 3 months. If you have an H-1B visa pending, you MAY be able to remain in the US, but not work. You must file the H-1B before your J status expires, and also before the cap is filled. Whatever you do, it sounds like you both will not be working between June and October.

To answer your questions:
1- The DOS is not that sophisticated. If they receive a waiver application, they will process it within their processing times. They will definitely not delay you because you still have 1.5 years. And anyway, from what you said, you don't have 1.5 years, you only have 5 months.

2- It is possible to convert from J-2 to J-1 if you obtain your own DS-2019 forms. Your sponsor will take care of that for you, and no there is no cap. However, if you get a J-1, you will then be subject to the HRR yourself. Both you and your wife will need to apply for separate waivers afterwards. Also, if your wife's J-1 is expiring, and you want her to stay with you as a J-2, that will require a petition of its own, and she may not be able to do that in the US if she doesn't have a J-1 waiver.

3- To transfer H-1B, your new employer will have to file a petition for you with the USCIS, and only once it is approved can you transfer institutions. There is a detailed Q&A offered here: http://immigration.about.com/library/weekly/aa030902b.htm

4- Yes, H-1B and green card petitions can be filed together, assuming you have a Green Card sponsor (or are sponsoring yourself). Note that applying for a green card petition is separate from applying for the green card itself. You can apply for a petition at any time, but as for the green card itself (called adjustment of status), you may have to wait depending on what country you are from and what type of green card petition you filed.
 
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