J1 to H1b

[zzTop 0]

I hold a J1 visa. I have been on J1 status and was granted the waiver of the two-year foreign residence. This was granted under the no-objection category.

Now, I have an academic job offer and my new employer is going to sponsor my H1B. However, the attorney working with my case says that INA 248(2) makes J-1 holders ineligible for CoS. I have no idea of the meaning of INA 248(2), and will have a phone call with him and my employer about this.

I have never heard of this, and everyone (lawyers, international offices at Universities, other people that changed status) I have spoken with in the past told me that once I have the waiver I could apply to the H1B visa.

I need to wait some days for the said phone call and was wondering if someone could clarify. 

[SusieQQQ 11,586]

Was your J to receive graduate medical education or training? Other than not having a waiver for the HRR, which you do, that appears to be a reason for being unable to change status. Note: this is just me looking up the clause, I have no personal experience with that. 
 

Change of nonimmigrant classification

(a) The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 1182(a)(9)(B)(i) of this title (or whose inadmissibility under such section is waived under section 1182(a)(9)(B)(v) of this title), except (subject to subsection (b)) in the case of-

(1) an alien classified as a nonimmigrant under subparagraph (C), (D), (K), or (S) of section 1101(a)(15) of this title,

(2) an alien classified as a nonimmigrant under subparagraph (J) of section 1101(a)(15) of this title who came to the United States or acquired such classification in order to receive graduate medical education or training,

(3) an alien (other than an alien described in paragraph (2)) classified as a nonimmigrant under subparagraph (J) of section 1101(a)(15) of this title who is subject to the two-year foreign residence requirement of section 1182(e) of this title and has not received a waiver thereof, unless such alien applies to have the alien's classification changed from classification under subparagraph (J) of section 1101(a)(15) of this title to a classification under subparagraph (A) or (G) of such section, and

(4) an alien admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title.

[igoyougoduke 1,656]

2 hours ago, zzTop said:

I hold a J1 visa. I have been on J1 status and was granted the waiver of the two-year foreign residence. This was granted under the no-objection category.

Now, I have an academic job offer and my new employer is going to sponsor my H1B. However, the attorney working with my case says that INA 248(2) makes J-1 holders ineligible for CoS. I have no idea of the meaning of INA 248(2), and will have a phone call with him and my employer about this.

I have never heard of this, and everyone (lawyers, international offices at Universities, other people that changed status) I have spoken with in the past told me that once I have the waiver I could apply to the H1B visa.

I need to wait some days for the said phone call and was wondering if someone could clarify. 

you can change from J to H1. Fire your lawyer and get a new one that is competent.

[zzTop 0]

3 hours ago, SusieQQQ said:

Was your J to receive graduate medical education or training? Other than not having a waiver for the HRR, which you do, that appears to be a reason for being unable to change status. Note: this is just me looking up the clause, I have no personal experience with that. 
 

Change of nonimmigrant classification

(a) The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 1182(a)(9)(B)(i) of this title (or whose inadmissibility under such section is waived under section 1182(a)(9)(B)(v) of this title), except (subject to subsection (b)) in the case of-

(1) an alien classified as a nonimmigrant under subparagraph (C), (D), (K), or (S) of section 1101(a)(15) of this title,

(2) an alien classified as a nonimmigrant under subparagraph (J) of section 1101(a)(15) of this title who came to the United States or acquired such classification in order to receive graduate medical education or training,

(3) an alien (other than an alien described in paragraph (2)) classified as a nonimmigrant under subparagraph (J) of section 1101(a)(15) of this title who is subject to the two-year foreign residence requirement of section 1182(e) of this title and has not received a waiver thereof, unless such alien applies to have the alien's classification changed from classification under subparagraph (J) of section 1101(a)(15) of this title to a classification under subparagraph (A) or (G) of such section, and

(4) an alien admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title.

I'm a J1 Research Scholar. The information you posted above is the 8 USC 1258(a)(2))? Is it the same as INA 248(a)(2)?

I've found this https://www.govinfo.gov/content/pkg/CFR-2020-title8-vol1/xml/CFR-2020-title8-vol1-part248.xml, do you think item 5 under 248.2 Ineligible classes, applies to me?

[SusieQQQ 11,586]

39 minutes ago, zzTop said:

I'm a J1 Research Scholar. The information you posted above is the 8 USC 1258(a)(2))? Is it the same as INA 248(a)(2)?

I've found this https://www.govinfo.gov/content/pkg/CFR-2020-title8-vol1/xml/CFR-2020-title8-vol1-part248.xml, do you think item 5 under 248.2 Ineligible classes, applies to me?

The house code publication has slightly different codes, I believe it’s the same clause. I get an error trying to open your link.

[zzTop 0]

https://www.govinfo.gov/content/pkg/CFR-2020-title8-vol1/xml/CFR-2020-title8-vol1-part248.xml

[SusieQQQ 11,586]

9 hours ago, zzTop said:

 

I've found this https://www.govinfo.gov/content/pkg/CFR-2020-title8-vol1/xml/CFR-2020-title8-vol1-part248.xml, do you think item 5 under 248.2 Ineligible classes, applies to me?

 

Item 5 is people who entered on VWP? I thought you said you were in J status. Did you leave and come back on VWP?

[zzTop 0]

I am confused with the fact that my J1 says Exchange Visitor category: Research Scholar. And item 5 of INA248.2 says "a visitor under visa waiver provisions of § 212.1(e) "

Does the word visitor here have anything to do with a Exchange Visitor?

 

Also, my No objection Waiver of the two-year requirement, says that the requirement is from section 212(e), does it have anything to do with item 5, under 248.2, when it says "§ 212.1(e)"?

 

[SusieQQQ 11,586]

1 hour ago, zzTop said:

I am confused with the fact that my J1 says Exchange Visitor category: Research Scholar. And item 5 of INA248.2 says "a visitor under visa waiver provisions of § 212.1(e) "

Does the word visitor here have anything to do with a Exchange Visitor?

 

Also, my No objection Waiver of the two-year requirement, says that the requirement is from section 212(e), does it have anything to do with item 5, under 248.2, when it says "§ 212.1(e)"?

 

No, the visa waiver program is something different.

 

i don’t know the answer to the other, I would presume it is the same section of the INA being referred to.
 

[jan22 3,053]

Look at INA 248.2(a)(3) -- if your J1was to receive graduate medical education or training, you cannot adjust, unless you have a waiver under 212 (e)(iii) -- and  meet other, specific requirements.  Some research scholars may fall under the "training" umbrella; most likely do not.

[zzTop 0]

11 minutes ago, jan22 said:

Look at INA 248.2(a)(3) -- if your J1was to receive graduate medical education or training, you cannot adjust, unless you have a waiver under 212 (e)(iii) -- and  meet other, specific requirements.  Some research scholars may fall under the "training" umbrella; most likely do not.

My research as a J1 had nothing to do with medical education or training.

In my DS-2019, it reads

and 

 

 

The word training in not mentioned in any place of it.

So I think all seems to be good, correct?

[jan22 3,053]

3 minutes ago, zzTop said:

My research as a J1 had nothing to do with medical education or training.

In my DS-2019, it reads

and 

 

 

The word training in not mentioned in any place of it.

So I think all seems to be good, correct?

Shold be okay.  Sounds like you need to tell the attorney to re-read that section of the law, pointing out how it does NOT apply to you.

[zzTop 0]

Just now, jan22 said:

Shold be okay.  Sounds like you need to tell the attorney to re-read that section of the law, pointing out how it does NOT apply to you.

You are right. I'm going to explain it step by step with many official information. I fear that my employer would take the expert opinion. But I have hope and faith that this crystal clear information will be on my side.