J Visa FAQs

Watch the Video on this FAQ: Can a green card be filed for me if I am on H4 or L2 or F1 – – any status other than H-1B or L-1A?

Video Transcript

Yes. A green card can be filed while you are on any status. But while filing a green card for visas like F-1, F-2, J-1, J-2 can be complicated in some ways. Consult your lawyers.  Make sure you got every part covered. If you are born in countries like India or China or any other countries that are very backed up you will have to be very careful and make proper plans before you file for a green card directly from any of the other statuses but there is no law that says you cannot do that. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Porting green card to a self owned company under AC21 portability

Video Transcript

Yes. There are two hidden problems here that you need to be aware of and be careful. One it must be an employer, employee relationship. Second, your job should be same or similar. Talk to a lawyer. Make sure you have covered these two grounds very carefully. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: AC21, changing jobs and when to file Supplement J

Video Transcript:

There is a graph on this about when you must file Supplement J on our web site and what happens after you file. 

As for your question, the answer is No. You will have to file Supplement J when the case is still pending, it's optional if you want to file you can but if you change employers next time and if there is an RFE you must file a Supplement J. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

You can continue to extend your H-1 even after I-140 is revoked by the employer, IF, the revocation was sent more than 180 days after I-140 approval.

Under AC21, you do not have to start a new green card if:

1. Your I-140 is approved;

2. Your I-485 has been pending for 180 days or more;

3. You will take an employment same as or similar to your green card job; and

4. You file Supplement J.

 See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1320

FAQ Transcript

The way it works is physicians when they have J-1 they get a waiver job like Conrad 30 program or through veteran's administration any one of these things. They are working on completing their waiver job typically 3 years. So the question is when can I file I-485?  This comes up very frequently in the context of physician, both when they are trying to do EB-1 or National Interest Waiver. In this case applying for his wife.  The answer is you cannot file I-485 until your 3 years of waiver is complete. Even if you file 1 day early your I-485 will be rejected. So until your waiver is complete you cannot file I-485.

Yes, the J-2 can, UNLESS the J-1 holder is a physician serving the three years for J-1 waiver. 

Immigrant intent is definitely a consideration for issuance of J visas. As to whether or not you may have a problem is impossible to predict. If you can have a safety net of an H-1 (if needed), you would be better off.

If I remember correctly, 212(e), the HRR, does not apply till you actually use the visa.

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

Extension is possible only if the program rules permit it. The worst case scenario in extension or new 2019 as I see it can be only that you have to go get a new via stamp.

J-2 holders can get work authorization and work as per the licensing requirements of their profession.

Contact the Waiver Review branch in USDOS first. Figure out what is going on with your pending case. You cannot apply for more than one type of waiver at the same time.

It is entirely in the discretion of the consular officer whether or not to give you a J-2 visa. Impossible to predict.

If you have neither complied with the J-1 home residency requirement, nor obtained a waiver, you cannot get an H-1. Make sure you are indeed subject to the 2-year HRR. You may not be - then an H-1 is a possibility. Go here to ask DOS for an advisory opinion: http://travel.state.gov/visa/temp/info/info_1288.html

If the consulate is not convinced of your nonimmigrant intent (214(b)), it is extremely difficult to remedy that. Usually, people in that situation should explore options like H-1, L-1, green card - all of which do not require a nonimmigrant intent (intention to remain in USA only for a brief period of time).

If you travel during change of status, the request for COS is deemed to be abandoned.

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

To the best of my knowledge that information is incorrect. You can file AOS only after the waiver is approved.

I see no reason to leave. The 60-day advice makes sense only if you have just entered USA.

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.

Quote:
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

(CT:VISA-803; 04-27-2006)

L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
Pursuant to 8 CFR Section 214.2(O)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

TN is also not allowed dual intent, but are often not questioned on their green card pendency.

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.

Ans. Your total limit of H-1 is still 6 years, Ravi. There is no special provision for physicians. But you may be able to leverage your green card for extensions beyond six years.

2. How to leverage the I-140 to get H-1 extensions?

Ans. When your I-140 is approved and your priority date is backed up, you are entitled to a 3-year H-1 extension even beyond 6 years of your H-1. This extension should be given even if the H-1 extension is for an employer other than the one who sponsored your green card.

3. Is an approved I-140 ground for an automatic denial of J visa?

Ans. No. But, it makes the grant of a J-1 very difficult because you have exhibited immigrant intent. J-1 visa (unlike H or L visas) does not permit you to have immigrant intent. The matter is totally in the discretion of USCIS or the consulates.

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.

Issuance of an F-1 does NOT waive the HRR. You will stay subject to it.