I was chosen in the H-1B lottery, but my J-1 is expiring in June. Can I stay in the US till October?

QUESTION: I have been in the US on a J-1 through the Teacher Exchange Program for almost three years, and my J-1 will be expiring on in June. I applied for an extension of my J-1 but my request for extension was denied. My employer applied for me for the H-1B cap quota and I was chosen in the H-1B lottery, and am waiting for approval of my H1B. With my J1 visa expiring this June, can I legally stay in the US while waiting for my H1-B approval and start working in October?

THE IMMIGRATION ANSWER MAN – ARI SAUER: Your situation is a common one. At the end of your J-1 program, you will have a 30-day grace period, but that is not enough to cover the period until October 1st, the start date for your H-1B. So, if you do nothing, you will have a gap in your nonimmigrant status between the end of the grace period and the start of the H-1B.

You should verify whether your petitioning employer filed the H-1B petition requesting that USCIS notify the US consular post abroad so that you can apply for a visa, or whether your petitioning employer filed the H-1B petition requesting a change in status to H-1B. Which box they checked on the petition forms will matter. If they did not request a change of status to H-1B, and they instead applied for you to apply for the visa at consular post, then you will need to leave the US and apply for the visa to be able to return to the US in September (or later) to begin employment in the H-1B. This would be true whether you end up having a gap in your status or not.

If the petition requests a change of status to H-1B, then whether you are able to be granted a change in status to H-1B, without having to leave the US, would depend on whether or not you continue to maintain valid nonimmigrant status. If, as is your situation, your grace period ends before October 1st and you are not able to get an extension of your status or a change of status to cover you during this gap period, then USCIS would approve the H-1B petition (assuming you are otherwise eligible), but they would deny your request for a change of status to H-1B. So you would have to leave the US and use the H-1B petition approval to apply for an H-1B visa through the US consular post in your home country and then return in September in H-1B status.

Alternatively, before your grace period ends, you could apply for a change of status from J-1 to B-2 (visitor) nonimmigrant status to allow you to remain in the US in valid nonimmigrant status until October 1st, when your change of status would become effective. However, if you file this application, it is important that you are clear in the application that your reason for filing the change of status to B-2 is to allow you to remain in the US while awaiting the start of your H-1B employment. If you are not up-front about your reason for filing the change of status to B-2, it is possible that USCIS could decide that you are misrepresenting your intent, which would create a bar of inadmissibility that would make you ineligible for most future immigration benefits. There is no guarantee that USCIS will approve the change of status to B-2. You must still meet all requirements for the B-2. When USCIS is ready to adjudicate your H-1B petition, they will first adjudicate the application for change of status to B-2. If they deny the application for change of status to B-2 then you are back in the situation where you have a gap in your valid nonimmigrant status and they will deny the change of status to H-1B and approve the H-1B petition for consular processing. If they approve the change of status to H-1B, then they will then be able to approve the change of status to H-1B (assuming your petitioning employer requested the change of status.)

All of this, of course, is assuming that you are not subject to the requirement for certain J-1 nonimmigrants to return to their home country and reside there for two years, under INA Section 212(e). If you are, then you would need a waiver of that requirement before you could apply to change to another status or obtain a visa in another category.

Please note that for those foreign nationals in valid F-1 (student) status who have H-1B petitions chosen in the H-1B lottery, you may be eligible for an H-1B cap-gap. In that case, you would have an automatic extension of you F-1 status that would cover the gap between the end of your F-1, or F-1 grace period, or OPT, and October 1st. But that will have to be the subject of a different blog post.

Please see my contact information below if you would like to schedule a consultation appointment with me to discuss your immigration issue.

Published 5/16/17 by attorney Ari Sauer.

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