Change of Status to the J-1 Category:
There are occasions when an alien who qualifies for J-1 status is already present in the U.S. in a different non-immigrant category. For example, a foreign employee may be present in the U.S. to attend a series of meetings or conferences with management and executives of his or her company’s U.S. parent (B-1 visa category). During the course of these meetings, management may determine that the alien has demonstrated business acumen that makes him or her strong candidate for eventual placement in a managerial or executive position with the overseas subsidiary.
Preparing the papers for a change of Status Application
Assuming that a change of non-immigrant status does not raise any problems-as when, for example, the alien has been engaged in practical training in the U.S. under a different non-immigrant visa. The following paperwork must be prepared:
- Form DS-2019 (including one for each family member including in the change of status application)
- Form I-539
- Supporting documents
- I-94 forms for alien and family members
- Filing fees
Each of these elements are discussed below:
- Form DS-2019
This form must be properly executed by the program sponsor and the intending participant. Keep in mind that some program sponsors, e.g., for “umbrella programs,” will not issue the Certificate of Eligibility if the alien is present in the United States. Under such a restriction, the alien would be precluded from changing his or her status while in the U.S. and would have to apply for the visa at a U.S. consulate.
- Form I-539
Form I-539 should be used to request the change of status. Box 1.b. of Part 2 of the form should be checked for a change of status, and “J-1” should be written in the appropriate space.
- Supporting Documentation
It is advisable to submit a letter from the company or organization with which training will be undertaken explaining the reasons for training the alien e.g., career development. Also, a description of the nature of the training that the alien will receive should be included.
- Copy of Form I-94 for the J-1 alien and each family member
Form I-94 is given to each alien upon his or her admission to the U.S. The alien is required to keep this document in his or her possession, as it indicates the period of authorized stay, as well as the non-immigrant category under which the alien was admitted.
- Correct filing fee
The USCIS charges a standard filing fee for any I-539 filing, regardless of the number of co-applicants listed on the form; all family members can be included in the same application.
Visa renewal and travel while application is pending or after application is approved
The USCIS approval of the change of status application gives the exchange visitor the right to remain in the U.S. subject to the conditions of the J-1 category. However, if the student leaves the United States, he or she cannot reenter without first obtaining a J-1 visa from a U.S. consulate outside of the U.S. This visa is obtained in much the same way that the original visa would be obtained if the exchange visitor applied from abroad for student status.
Persons Ineligible for a change of Status
Persons who are not eligible to change their status in the United States (e.g., they are out of status or engaged in unauthorized employment), must apply for a J-1 non-immigrant visa abroad unless they are able to justify a late application. The documentation to be submitted in connection with a J-1 visa application. It should also be noted that persons who are in unlawful status for significant periods of time (181 days or more) may be subject to new grounds for inadmissibility upon their departure from the United States. Persons subject to the new inadmissibility grounds are ineligible for non-immigrant or immigrant visa issuance for three or 10 years, depending on the length of the period of unlawful presence. Agency guidance on the new inadmissibility grounds, which were added by the IIRIRA.