Last minute J1 Waiver and H1

I

isella

New Member
Hi everyone

I've been doing some research about my particular situation and I find this site very helpful. However I still have some doubts about my case. I hope you can help me.

I am J-1 holder subject to the 2 HHR. I've been here as a trainee for a year and a half. My visa expires this March, 29th. I didn't have plans to stay in the US. But some weeks ago I found a company very interested in filing for a H1 visa. I know I have to get a waiver in order to be elegible to get a H1 visa and I know I can't file for change of status, but my questions are:

1. If I go back to my country once my J-1 visa expires and my future employer files for my H-1 visa this April, at what point will I need the waiver?I read in this forum that the employer can file for the H-1 visa without the waiver. And that I will only need it once the petition is approved and I have to get the visa stamped in my passport, which will happen months after the application. Is this true?

2. I also have a B1 tourist visa until the year 2011. I've read some somewhere that once I got the J-1 visa issued my tourist visa was automatically void ( the consulate didn't stamp or put any statement on my B-1 visa). Some other people say that is not true. That my B1 tourist visa is still valid. I just want to make sure so if I need or decide to come back to the States after my J1 expires I won't have any problems.

3. Can I apply for a J-1 waiver just weeks before my J-1 visa expires? Will the application be valid? I am not planning on staying in the US out of status. I want to comply with all the laws and regulations.

I'd really appreciate any advice and help you can give me. I'm running out of time!!!:confused:
 
1. If I go back to my country once my J-1 visa expires and my future employer files for my H-1 visa this April, at what point will I need the waiver?I read in this forum that the employer can file for the H-1 visa without the waiver. And that I will only need it once the petition is approved and I have to get the visa stamped in my passport, which will happen months after the application. Is this true?
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yes

2. I also have a B1 tourist visa until the year 2011. I've read some somewhere that once I got the J-1 visa issued my tourist visa was automatically void
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not true. Having J-1 or HRR doesn't preclude you from using other non-immigrant visas.

3. Can I apply for a J-1 waiver just weeks before my J-1 visa expires? Will the application be valid?
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at any time
 
Waiver + H1B

Hi this message is for LucyMO / Isella or whoever who has been through the Waiver and H1B process.

I am on a J2 visa (non-medical & non-research). My present employer is willing to file my H1B this April. I read in your message that the employer can file H1B even without the J1 waiver approval...Is this correct? I have applied for the waiver, but I dont think i will get it by the "April" filing time. It may take maybe two months...since I applied for it last week (I already had the no objection certificate from home country). How long would USCIS wait for the waiver to come through.

Please advise.

thanks

Sunny
 
According to USCIS rules, you can apply for adjustment to H-1B if you have a concurrently filed J-1 waiver based on no objection with USCIS.

As you probably know, you don't file a no-objection with USCIS. You apply to the DOS, who then makes a recommendation and forwards that application along with their recommendation to the USCIS.

What this means is that you CAN apply for H-1B if you have gotten your DOS recommendation, since the DOS recommendation is a copy of the actual form they send to USCIS and is evidence that you have a J-1 waiver application pending at USCIS.

You CANNOT apply for H-1B if the DOS has not yet issued its recommendation, since that means there is no waiver application pending with USCIS yet.

How long will it take: Well, I've seen ranges from a few days after receipt of the embassy's no objection letter (which the embassy must send directly) to many weeks. It's not inconceivable that you will get your DOS recommendation in time. It also depends, unfortunately, on your country of origin, as some countries have longer security checks. Good luck.
 
What this means is that you CAN apply for H-1B if you have gotten your DOS recommendation, since the DOS recommendation is a copy of the actual form they send to USCIS and is evidence that you have a J-1 waiver application pending at USCIS.

You CANNOT apply for H-1B if the DOS has not yet issued its recommendation, since that means there is no waiver application pending with USCIS yet.
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what he probably means is - applying for change of status to H1.

As far as I know the employer filing a petition for H1 in April is not the same as you applying for a change of status. So, the employer can go ahead with his petition, but you cannot get a stamp or apply for a change of status (I-539) until you get a waiver.
 
Yes, I did mean that you cannot apply for a "change of status" to H-1B until you have the DOS recommendation.

I am still not clear if your sponsor is even allowed to file an I-129 without the I-539 if you are in the US. It seems that there should be no reason not to file the petition first and the "Change of Status" later, but it seems that most sponsors file both together, and a lawyer told me that you cannot file one without the other, it "just isn't done that way".
 
jk0274 said:
Yes, I did mean that you cannot apply for a "change of status" to H-1B until you have the DOS recommendation.

I am still not clear if your sponsor is even allowed to file an I-129 without the I-539 if you are in the US. It seems that there should be no reason not to file the petition first and the "Change of Status" later, but it seems that most sponsors file both together, and a lawyer told me that you cannot file one without the other, it "just isn't done that way".
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That is write. I copied from the I-129 form the followings (page 12-13)
"The following nonimmigrants are not eligible to change
status:
*A J-1 exchange visitor whose status was for the purpose
of receiving graduate medical training (unless a waiver
has been granted under section 214(l) of the Immigration
and Nationality Act);
*A J-1 exchange visitor subject to the foreign residence
requirement who has not received a waiver of that
requirement;"

http://www.uscis.gov/files/form/i-129instr.pdf

The employer should file I-539 for applicants if they are in US concurrently with the I-129 (or at least before it gets approved) or they will be out of status if the I-129 approved
 
Thanks Lucy, Jk0274 & mmed, for your advise.. To sum up:

- My present employer can file an H1B petition (I129) for me, without the waiver
- I need to submit the Change of status form before the H1B gets approved.
- How long does it take to get the H1B approval?

"mmed" also mentioned that if the H1B gets approved before the change of status filing...I will become out of status. This would mean that I cannot get H1B visa & the right to stay in USA...Right? But will my present J2 legal status & work authorization not remain valid until the time my DS 2019 is valid...since my DS2019 is valid upto Dec 2008...(unless my wife changes her present J1 job and converts to H1...which she is not intending to do).

In other words......Even if I do not get H1B now....and the waiver comes in late after the CAPS is over.... I will still remain on J2 status since my wife's present J1 status will continue till Dec08 (even after receiving the waiver) if she foes not change her job. Is this correct.
 
sunny1971 said:
Thanks Lucy, Jk0274 & mmed, for your advise.. To sum up:

- My present employer can file an H1B petition (I129) for me, without the waiver
- I need to submit the Change of status form before the H1B gets approved.
- How long does it take to get the H1B approval?

"mmed" also mentioned that if the H1B gets approved before the change of status filing...I will become out of status. This would mean that I cannot get H1B visa & the right to stay in USA...Right? But will my present J2 legal status & work authorization not remain valid until the time my DS 2019 is valid...since my DS2019 is valid upto Dec 2008...(unless my wife changes her present J1 job and converts to H1...which she is not intending to do).

In other words......Even if I do not get H1B now....and the waiver comes in late after the CAPS is over.... I will still remain on J2 status since my wife's present J1 status will continue till Dec08 (even after receiving the waiver) if she foes not change her job. Is this correct.
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I did not read your first post well. Your employer CAN NOT file I-129 (change of status while you are in US) for you without a favorable recommendation from the DOS regarding your wife waiver application and the H mostly will not be issued without the final waiver.
Since your wife is the principal (J1), she can retain her status and continue her work even after the final waiver get issued without problem.
If you have kids you can leave them as J2 or change their status to H4 with your application, up to you.
sometime before your wife visa expire you should apply for her (and any kids if applicable) to H4 (change of status) to keep the dependents in certain status.
 
mmed said:
Your employer CAN NOT file I-129 (change of status while you are in US) for you without a favorable recommendation from the DOS regarding your wife waiver application and the H mostly will not be issued without the final waiver.
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mmed,

I-129 is a petition for a non-immigrant worker, not a change of status application. I-539 is the change of status application that is normally filed together with the I-129 petition. The question being asked is: Is it possible to file just the I-129 petition WITHOUT the I-539 change of status application? Then once the J-1 waiver is recommended or approved, the applicant can then file I-539 to follow the I-129.

Almost all H-1B applications consist of both I-129 and I-539 together, if the applicant is in the US. We have not heard of just the I-129 filed alone for an applicant who is in the US (without the I-539, which requires a waiver), and are trying to figure out why.
 
jk0274 said:
mmed,

I-129 is a petition for a non-immigrant worker, not a change of status application. I-539 is the change of status application that is normally filed together with the I-129 petition. The question being asked is: Is it possible to file just the I-129 petition WITHOUT the I-539 change of status application? Then once the J-1 waiver is recommended or approved, the applicant can then file I-539 to follow the I-129.

Almost all H-1B applications consist of both I-129 and I-539 together, if the applicant is in the US. We have not heard of just the I-129 filed alone for an applicant who is in the US (without the I-539, which requires a waiver), and are trying to figure out why.
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Well. I want sunny1971 to go to the USCIS web site and read the instructions of form I-129 very carefully. When an employer wants to sponsor him H1B visa he should file I-129 ONLY and should chick this part for him in I-129 form

5. Requested Action. (Check one):

b. Change the person(s)' status and extend their stay since the person(s) are allnow in the U.S. in another status (see instructions for limitations). This isavailable only where you check "New Employment" in Item 2, above.

So, he is actually change his J2 status to H1B. This petition for him needs waiver recommendation from the DOS and the one his wife is currently applying is good if issued (will cover J1 and all J2 dependents).

The second form which makes the confusion is I-539 (Application To Extend/Change Nonimmigrant Status) this is just a form for the dependents only NOT for the principal at all (suppose he is single, the employer will not fill it). And as you said it is usually filled at the same time with the I-129, again NOT for him, it is for his dependents.

Since his wife is already on J1 visa, this is better than to be H4 for the time being because H4 can not work but J1 can. So, he should leave her as J1 and do not change her status by form I-539 except sometime before her J1 approach expiration (I assume he got the waiver recommendation and filled the I-129 and get approved or still pending)

I know that he want to file H1B by any mean and I was in the same situation and he need anyone to till “yes you can apply go ahead without waiver recommendation at least”. If his employer applies for him to change his status from the J2 to H1B (FORM I-129 ONLY, yes it is called Petition for a Nonimmigrant Worker) without waiver recommendation, his petition will be denied immediately.
 
Last minute J1 waiver...line sunny

Hi
I am a new member. My husband is in J2 has a job and in the same position as "sunny". Our Indian embassy has forwarded the waiver letter to the DOS (still not yet online). We are sure of expecting a DOS recommendation around mid or April end. My husband's attorney says they he will go ahead and file the H1B without the waiver. Then he says that the INS will ask for RFE(Request for Further Evidence) - the DOS recommendation within 60 to 90 days. Then he says we can send the DOS recommendation letter for H1 B to be approved. The attorney says there will be no problem since we know that the DOS recommendation will be issued shortly. Can anyone help with this thing? Is it safe to proceed according to the attorney? I am also desperately looking for some input.

Lately, what is the timeline between DOS receiving the waiver and approving recommendation? Jigesh can you help me with some information?
 
sri2377 said:
Hi
I am a new member. My husband is in J2 has a job and in the same position as "sunny". Our Indian embassy has forwarded the waiver letter to the DOS (still not yet online). We are sure of expecting a DOS recommendation around mid or April end. My husband's attorney says they he will go ahead and file the H1B without the waiver. Then he says that the INS will ask for RFE(Request for Further Evidence) - the DOS recommendation within 60 to 90 days. Then he says we can send the DOS recommendation letter for H1 B to be approved. The attorney says there will be no problem since we know that the DOS recommendation will be issued shortly. Can anyone help with this thing? Is it safe to proceed according to the attorney? I am also desperately looking for some input.

Lately, what is the timeline between DOS receiving the waiver and approving recommendation? Jigesh can you help me with some information?
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No one in the earth knows when the DOS will issue the recommendation, it may be issued in the same day the DOR receive NOS from your country or may be issued after many years, mine issued after 5 1/2 months after the DOS post that they receive the NOS from my country (see my signature). If the USCIS request the waiver recommendation and the recommendation delayed the H petition will be denied.

It depends on your case, if you will be out of status shortly, go ahead and apply for H and carry the risk because you can not change status to H if you will be out of status. If you still have sometime in the J, then wait for the DOS decision.

Sometimes the H will be not issued untill the final waiver is ready. Again, the USCIS may approve the final waiver in few days or years, mine is pending 4 months ago.
 
mmed, thanks for the update, I am also now confused and tensed. My Indian embassy in Washington DC sent me the waiver letter saying that they are forwarding it to DOS. However, I am not seeing it online.

How often the J1 case status are updated online? Some forums say they update every Friday evening.
 
sri2377 said:
mmed, thanks for the update, I am also now confused and tensed. My Indian embassy in Washington DC sent me the waiver letter saying that they are forwarding it to DOS. However, I am not seeing it online.

How often the J1 case status are updated online? Some forums say they update every Friday evening.
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The update is daily and it takes one week maximum to be there in your profile. The point is that the embassy should include as I remember one page with your data in their package and they should write on the envelope your name, number ...etc. If not there will be delays.
 
Procedure to get Waiver

Hi all,

I feel very stupid coz i dont even know how to post a query,

Anyways guys i really need help, ill start with first thing first,

I applied for a waiver long back in july however i never completed the online waiver application, Which i didnt knew exsit.

I sent forms and affidavit to the consulate general in NY and they stamped it and sent it back to me and then i sent them to all the required departments in India, Now i have received clearances from all the three departments,
Now the problem part, When i took these clearances to the consulate general with ma passport and all the documents they asked me for a case no. which i didnt have, so after i saw the posts on this forum i applied online for a waiver(ds-3035), i got a temp case no. and i have sent the papers to St.Louis,MO. now my questions are:

1) where do i send the third party barcode and wat all document do i send with it and when do i send this barcode before i receive mails from US depart in St.louis MO or after i receive the mails

2) Can i apply for H-1b visa now as i have received clerences from all the dept. in india

3)wen do i send the clearences received and other documents to the Consulate general .

Pl help me i m in deep trouble:(
 
jitendra81 said:
1) where do i send the third party barcode and wat all document do i send with it and when do i send this barcode before i receive mails from US depart in St.louis MO or after i receive the mails
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You can send the barcode sheet now. You send it, along with the 3 documents from India, as well as the application and any fee required by the Indian embassy, to either the Indian embassy in Washington or a consulate. Please follow the Indian embassy J-1 waiver instructions to know where to send it and if there is a fee. But you can do all of that now that you have the barcode sheet.

jitendra81 said:
2) Can i apply for H-1b visa now as i have received clerences from all the dept. in india
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You cannot apply for a change of status to H-1B inside the US until the State Department has issued a favorable recommendation on your waiver. If you want to apply for a visa abroad, you will need the final J-1 waiver from USCIS before it is issued to you.

jitendra81 said:
3)wen do i send the clearences received and other documents to the Consulate general .
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Now. The barcode sheeet has your case number on it, and the consulate will take care of it.

jitendra81 said:
Pl help me i m in deep trouble:(
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Another thing: You application consists of the latest paperwork you did (online). What you did last summer can be ignored since you never submitted an application fee to the State Department. I assume you sent a $215 money order with your online application, correct? You will not receive anything else from the State Department now until they adjudicate your case, in which case you will get a copy of the letter of recommendation they send to the USCIS (if you have a favorable recommendation). Until then, you just need to get the stuff to your embassy, and wait....
 
Last minute J1 waiver

MMED,

Thanks for the reply. I got the letter from Indian embassy at D.C. last Tuesday. So allowing a weeks time, I should expect that online by this weekend.

However, my International office told me that they can still renew my J1 for one more year (2008 Oct) before the waiver is granted i.e. before they receive an intimation from USCIS.

Suppose I do not get waiver or DOS recommendation and my husband's H1B gets denied, can he still stay in the country as long as he has a J2 status? or should he vacate in 180 days?

It would be of great help if you could answer to this.

Thanks
 
H1 after getting J1 waiver

Hi there.

I was going throught the forum of labour law talk that you did put . I must congratulate you for your efforts and the positive reply from govt.

But I would also like to get help from you. The thing is that I came in 2008 may on J1 visa with 2 yr residence rule. I am a hotel management graduate. And I also applied for waiver and the reply is positive. Now the thing is my visa has expired but I have had already applied for the student visa F1. But now I came across a Motel owner and he wants to help me out and get the H1 visa. And looking at the current economy where anything is uncertain I thought it can be a good idea. Now the thing is can I get H1 approved having a waiver of J1 and being on the same professional line , do u think I can get granted for the visa. Kindly let me know.

The motel owner did confirmed with his lawyer and the lawyer said that provided I have a waiver and this year still 20000 applications for H1 are not yet been filed so there seems a good chance. But when I had a word with same lawyer and did send my waiver and all documents he said U need to have the H1B waiver also.so I am all confused. So please help me out.

Thanks Mihir
 
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