Can I change my status from J1 to O1 within the US?

[NXT 0]

I have always been told by many people that, if I have an unfulfilled 2-year home residency requirement due to a J1 (212(e)), I am not eligible to change my status to O1 within the US; I will have to travel out of the US and apply for a O1 visa stamp to re-enter (and activate my O1 status). The USCIS website seems to confirm this info: https://www.uscis.gov/visit-united-states/change-my-nonimmigrant-status-category/change-my-nonimmigrant-status (scroll to the bottom of the page).

 

However, my situation is different. I was on J1 three years ago, which was subject to 212(e). I then left the US but not to my home country, so my 212(e) has not been fulfilled (i.e., I still have it). I returned to the US this year on another J1 with another sponsor, which is NOT subject to 212(e) (it's stated clearly on both my current DS2019 and my J1 visa that I am not subject). My O1 petition has been approved, and the approval notice states that my status will be automatically change to O1 effective on the first day of my new job. It doesn't mention anything about having to travel out of the US. So I contacted the attorney who filed my O1 petition, and he said that I was eligible to change my status within the US, that I didn't have to travel out to get my O1 visa stamp (unless I wanted to), and I needed not to worry.

 

I'm still worried, to be honest, because many people have told me the opposite, and the USCIS website says the same thing. Is my attorney right? Can I change my status to O1 inside the US? Have you ever seen a case like mine? I just want to have assurance. Thanks!!!

[Coco8 1,042]

O1 is the only visa you can get if you have a J1 subject to 212(e).

 

You cannot get H1B nor apply for a green card. 

 

Yes, you can change status in the US. I know plenty of people who have done that.

 

If you want to apply for green card, I recommend accumulating time in your home country for holidays and keeping evidence of it (flight tickets, stamps on passports, credit card use in your country). You can accumulate 2 years (and maybe you have even traveled before which would also count, as long as it was not during the J1 subject to 212(e)).

 

You need to try to get out of the 212(e) or you will be on O1 for every which is a drag.

 

I do not recommend leaving the US. Sometimes consulates are a pain and there are a lot of people who have O1 approved who have been waiting for a long time for their O1 (even British or German citizens).

Edited November 21, 2017 by Coco8

[Suudsu 66]

2 hours ago, NXT said:

I then left the US but not to my home country, so my 212(e) has not been fulfilled (i.e., I still have it).

If you went back to the country in which you applied for the first J-1 (the one subject to the two-year return residency requirement), that may have satisfied the requirement. See:

https://travel.state.gov/content/visas/en/study-exchange/student/residency-waiver/ds-3035-faqs.html

Quote

I am a former J-1 exchange visitor from country X. Instead of returning home to country X after I completed my program in the U.S., I moved to country Y. Can I fulfill the two-year home-country physical presence requirement in country Y?

Generally, the country which was your country of legal permanent residence when you received your J-1 status is the country to which you must return to fulfill the two-year home-country physical presence requirement, unless you obtain a waiver or the exception discussed in the next FAQ applies to you.

 

[NXT 0]

Thanks @Suudsu for the answer. I'm fully aware of how to fulfill the 2-year requirement, but that's not my question.

My question is whether I can change my status inside the US from my current J1 (which is NOT subject to 212e) to O1 while I haven't fulfilled the 2-year requirement on my previous J1? In other words, do I have to travel out of the US to apply for an O1 visa stamp in order to "activate" my new O1 status?

[Coco8 1,042]

28 minutes ago, NXT said:

Thanks @Suudsu for the answer. I'm fully aware of how to fulfill the 2-year requirement, but that's not my question.

My question is whether I can change my status inside the US from my current J1 (which is NOT subject to 212e) to O1 while I haven't fulfilled the 2-year requirement on my previous J1? In other words, do I have to travel out of the US to apply for an O1 visa stamp in order to "activate" my new O1 status?

 

Yes, that is my answer. For O1 the 212e is irrelevant. A lot of Fulbright scholars get an O1 to avoid serving the 2 years in their home country. 

 

I had a J1 with a 212e and I ended up getting a waiver (luckily) because I needed an H1B and I could not get an O1. 

 

Changing status with the US is common but take into account that your J1 has to be valid or you have to be within the grade period.