Chapter 5 - Change of Status, Extensions of Stay, Program Transfers, and Reinstatement
INA 248 provides a nonimmigrant, lawfully admitted to the United States, who is continuing to maintain the status in which the nonimmigrant was admitted or previously changed to, the opportunity to change from one classification under INA 101(a)(15) to another, with certain restrictions. The applicant must meet all eligibility criteria for the new category.
Foreign medical graduates (FMGs) granted a waiver of the 2-year foreign residence requirement under either the state or federal program may change status from J-1 to H-1B. To qualify, the FMG must be otherwise eligible to apply for a change of nonimmigrant status. This includes the requirement for timely filing of the Petition for a Nonimmigrant Worker (Form I-129), requesting change of status.
If a J-1 exchange visitor applies for a change of status to H-1B and the H-1B cap has been reached, DHS may extend the applicant’s duration of status until the next fiscal year when H-1B status can commence. Additionally, a J-1 exchange visitor who has obtained a waiver based on INA 214(l) is not subject to the H-1B cap.
Although an Application to Extend/Change Nonimmigrant Status (Form I-539) and fee are required, changing from J-1 to J-2 is not regarded as a change of status, therefore, it is not prohibited. However, three important items should be noted regarding this type of change:
Any nonimmigrant or nonimmigrants subject to the 2-year foreign residence requirement retains that obligation despite the change from J-1 to J-2 status or vice versa;
The nonimmigrant or nonimmigrants involved may acquire a foreign residence requirement that they did not have previously (for example, a J-1 exchange visitor not subject to the requirement who becomes a J-2 accompanying spouse of someone who is subject acquires the same obligation as the (new) J-1 principal); and
Before approving any such change, the officer should be satisfied that the applicant is requesting the change for legitimate exchange visitor purposes and not merely to extend the stay in the United States by flip-flopping the roles of the principal exchange visitor and the accompanying spouse.
A request for an extension of stay or a program transfer must be filed with the U.S. Department of State (DOS). An exchange visitor’s request for reinstatement must be filed with the DOS after consultation with the program sponsor.
[^ 2] See INA 248(b). See 8 CFR 248.2(b). Any J nonimmigrant who was admitted (or acquired such status) to pursue graduate medical education or training is ineligible to change status, even if the J nonimmigrant obtains a waiver of INA 212(e).