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Change of J-1 Status (Summer Work-Travel, Au Pair)

bigstockphoto_Passports_31148NOTICE: The information contained on this page site is intended to educate the general public and is not intended to provide legal advice. To ensure proper handling of your individual situation, please call (703) 527-1779.

J-1 Visa Overview

According to the U.S. Department of State, the Exchange Visitor (J) non-immigrant visa category is for individuals approved to participate in work-and study-based exchange visitor programs. These programs include Summer Work and Travel Program and Au Pair Program.

If you have arrived to the United States with a J-1 visa, you may be able to extend your stay beyond the duration of your program by changing your J-1 status to that of B-1 (business visa), B-2 (tourist visa), F-1 (student visa), H-1B (work visa), or other. You may also have other options, including if you want to remain in the United States permanently.

Work and Travel

One of the most common J visa programs is the Summer Work Travel program, which provides foreign students with an opportunity to live and work in the United States during their summer vacation from college or university to experience and to be exposed to the people and way of life in the United States. According to the Summer Work Travel program’s rules, the maximum length of the program is four months and participants must return to their home country prior to the start date of their university or college. However, if you apply for a change of status and receive the approval of the USCIS, you may be able to extend your stay beyond the duration of four months.

Au Pair

Another well-known program within the J-1 visa category is the Au Pair program. Au Pair is a domestic assistant from a foreign country who works for, and lives as part of, a host family in the United States, providing childcare services for the host family (up to 45 hours per week). Participants of this program can live with their host families for 12 months (with the option to extend their stay for another 6, 9, or 12 months), while studying for academic credit or equivalent at an accredited U.S. post-secondary educational institution.

Changing Your J-1 Status

If you wish to stay in the United States beyond the duration of your J-1 visa program, you need to apply for a change of status and receive approval of the United States Citizenship and Immigration Services (USCIS).

According to the USCIS, you may apply to change your status in the United States if:

• You were lawfully admitted into the United States as a nonimmigrant;
• You have not committed any act that would make you ineligible to receive an immigration benefit;
• There is no other factors that require you to depart the United States prior to making a reentry based on a different classification (for example, a USCIS officer may determine that you should obtain a new visa prior to being readmitted into the United States);
• You submit an application for a change of status before the expiration date on your Form I-94, Arrival-Departure Record. (However, there are certain circumstances under which USCIS may excuse a late submission.)
• Your passport is valid for your entire requested period of stay in the new nonimmigrant classification in the United States.

Please note that you are not eligible to change your status if you are a J-1 Exchange Visitor subject to the 2-year foreign residence requirement. However, you may be able to obtain a J visa waiver and remain in the United States.

The USCIS recommends that you apply as soon as you determine that you need to change your status to a different nonimmigrant category. Until you receive approval from USCIS, you should not assume that your new status has been approved, and you should not change your activities in the United States.

If you fail to maintain your nonimmigrant status, you may be deported from the United States and/or barred from entering the United States in the future. If you are already out of status, the USCIS cannot change your status unless you can prove that you have fallen out of status due to certain limited circumstances beyond your control.

Changing J-1 Status to B-1/B-2 Status (Business/Tourist Visa)

You may wish to change your J-1 status to B-1 or B-2 status (Visitor for Business or Pleasure) if want to stay in the United States after your summer work program is over in order to travel around the country for business or as a tourist.

Application Process

In order to change your J-1 status to B-1 or B-2 status (Visitor for Business or Pleasure), you have to file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit all necessary documents. Processing times may vary; the USCIS recommends that you apply for a change of status no later than 60 days before your authorized stay as specified on your Form I-94 expires. You can include your dependents (spouse and unmarried children under 21) who are requesting the exact same change in nonimmigrant category on the same Form I-539.

The benefit of changing your J-1 status to B-1/B-2 status (Business/Tourist Visa) is that it allows you to travel in the United States. In most cases, you do not have to leave the United States in order to change your status, meaning that you can stay in the United States after your Summer Work Travel program is over, provided that you have applied and received approval for a change of status. You should not engage in activities permissible under your new status until the new status is approved by the USCIS.

How to Qualify

Usually, in order to qualify for a B-1 or B-2 Business/Tourist Visa, you have to demonstrate that:

• You have a permanent residence outside of the United States and you intend to return to this residence after your visit to the United States. You need to submit documentation to prove that you have a place of residence in your home country, and that your residence will be available to you upon your return. If you study or work in your home country, you can also show that you intend to resume your education or job upon return.
• You possess sufficient funds for traveling in the United States.

Changing J-1 Status to F-1 Status (Student Visa)

You may wish to change your J-1 status to F-1 status (Student Visa) if you want to stay in the United States to engage in academic studies or language training at an accredited institution.

Generally, you can apply for an F-1 visa if you wish to attend an accredited academic institution in the United States, such as a university, college, high school, private elementary school, seminary, conservatory or other academic institutions, including a language training program. A foreign student in F-1 classification may stay in the United States for extended periods of time to complete degrees or other academic goals, and, under certain circumstances, may be allowed to work in the United States.

Application Process

The benefit of changing your J-1 status to F-1 status (Student Visa) is that it allows you to pursue your course of study at an accredited institution in the United States, provided that you meet the necessary requirements of F-1 Student Visa.

In order to change your J-1 status to F-1 status, you have to file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit all necessary documents. Processing times may vary; the USCIS recommends that you apply for a change of status no later than 60 days before your authorized stay as specified on your Form I-94 expires. You can include your dependents (spouse and unmarried children under 21) who are requesting the exact same change in nonimmigrant category on the same Form I-539.

You may return to your home country when your J-1 visa expires and apply for F-1 Student Visa at a U.S. Embassy or Consulate abroad. Alternatively, you may obtain all necessary documents for an F-1 Student Visa while in the United States. Either way, you need to you meet all F-1 visa requirements, such as applying and getting accepted to an accredited institution. You should not start your academic program until your new status is approved by the USCIS.

How to Qualify

Usually, applicants must demonstrate that they properly meet student visa requirements, including:

• Have a residence abroad, with no immediate intention of abandoning that residence;
• Intend to depart from the United States upon completion of the course of study;
• Possess sufficient funds to pursue the proposed course of study.

Changing J-1 Status to H-1B Status (Work Visa)

You may wish to change your J-1 status to H-1B status (Work Visa) if you want to stay in the United States to work for an eligible employer. Under the H-1B visa classification, an employer may sponsor temporary non-immigrant visas for alien professionals or specialty occupation workers with a bachelor’s degree or higher. The H-1B status is available for initial term of three years and can be extended for an additional three years up to a maximum of 6 years. Typical H-1B occupations include accountants, computer programmers, architects, engineers, doctors and college professors.

Application Process

If you want to change your status to that of H-1B (Temporary Skilled Professional), your prospective employer should file Form I-129, Petition for a Nonimmigrant Worker, before your Form I-94 expires.

You can apply for H-1B visa through your employer while you are in the United States, meaning that you do not need to leave the country to apply. However, you cannot begin work in the new classification until the USCIS approves the change of status. If you leave the United States at the end of your J-1 visa program, you can still apply for an H-1B work visa from you home county at a U.S. Embassy or Consulate.

If your prospective employer files Form I-129 to change your status, and your spouse and/or unmarried children under age 21 also want to change their status to remain in the United States as your dependents, they need to file a Form I-539, Application to Extend/Change Nonimmigrant Status. The USCIS recommends that you file the I-129 and I-539 forms for your dependents together. Technically, however, they are separate applications; therefore, you and your family members must file all the supporting documents with each application.

How to Qualify

In the Form I-129 you and your employer need to establish that:

• You will be performing the type of work covered by the new nonimmigrant classification for the petitioner;
• You personally meet the requirements for changing your status.

Additionally, you and your employer must meet all the H-1B requirements. For example, as an employee, you have to demonstrate that you have required qualifications for the specialty occupation and the specific job offered by the employer. You also have to prove that your foreign university degree and/or work experience qualifies as the equivalent of a U.S. degree.

You may also have other options to extend your stay in the United States after your J-1 visa program ends. If you want to remain in the United States permanently, you may also have immigration options available to you, such as applying for asylum in the United States.

Attorneys at I.S. Law Firm have helped many J-1 visa holders and other visitors to change their status, extend their visit, and remain permanently in the United States. To explore your immigration options, please contact us at (703) 527-1779 or via e-mail: law@islawfirm.com.

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