How to change of Status to the J-1 Category?

Change of Status to the J-1 Category:

imagesGenerally

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:

  1. Form DS-2019 (including one for each family member including in the change of status application)
  2. Form I-539
  3. Supporting documents
  4. I-94 forms for alien and family members
  5. 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.

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What is the Procedure for Canadian TN Professionals?

General Procedure:

imagesProcedures for the classification of a Canadian citizen as a TN professional under NAFTA are substantially similar to those under the FTA. As under the FTA, Canadian professionals may enter the United States under NAFTA without the requirement of a USCIS petition approval required in the H-1 category; these professionals can enter the United States simply by providing documentation at the port of entry that they are engaged in one of the designated professions, and that they possess the requisite educational credentials to qualify in the listed profession. Canadian professionals are designated as TN-1 non-immigrants as distinguished from the TC classification under the FTA.

Preparation of the TN application

Canadian professionals seeking admission to the U.S. in the TN category must present the case for admission at the port of entry. No prior petition, labor certification, visa or other approval is required of Canadian citizens seeking admission as TN non-immigrant. The major ports of entry now have Customs and Border Protection officers designated to adjudicate NAFTA applications.

Presentation of the TN application

  • Canadians seeking TN status may apply at major ports of entry, airports handling international nights, or at U.S. preclearance stations in Canada.
  • Such applications are made in conjunction with applications for admission and must be filed in person.
  • The Service has recently revised its field instructions to provide that ports of entry and preclearance stations can no longer accept advance filings of TN applications under NAFTA submitted by Canadians.

Family members of the TN applicant: TD non-immigrants

Under the PTA, spouses and unmarried minor children of a TN applicant were admitted to the United States as B-2 non-immigrant. NAFTA created a separate non-immigrant category for such dependents; under NAFTA, the spouse and unmarried minor children of a TN applicant who are also Canadian citizens are admitted to the United States as TD non-immigrant. No separate application needs to be made for family members and no filing fee need be paid for them. If the family members are entering the U.S. after the principal TN applicant has been admitted, they should present a certified copy of the alien’s I-94 form which was given to the alien upon admission to the United States.

Processing of the TN application, Admission, and Re-entries

  • TN applications are processed in the same manner that TC applications were processed under the PTA. When the application is submitted at the port of entry with the $50 filing fee, the applicant will be given a filing receipt on Form G-211, G-711, or I-797.
  • As under the FTA, admission will be granted for a one-year period, which will be indicated, along with the TN classification, on an I-94 form given to the applicant.
  • The one-year period of admission is good for any number of re-entries during the one-year period.

Increased Screening at Ports of Entry

Upon seeking admission to the United States, foreign nationals should expect more thorough screening procedures at airports and other ports of entry. Visa validity and identity will be checked in DHS and other law enforcement databases. Foreign nationals will be subject to more questioning by immigration officials about immigration status, travel history, the purpose of the visit, background, employment and other issues. During re-entry, foreign nationals should be patient and answer all questions clearly. Omission or misrepresentation of information can result in denial of admission. If detained by immigration authorities, foreign nationals should note that they are not entitled to legal representation at the port of entry, but may ask for permission to contact an attorney if the need arises.

Automated entry programs for Canadian nationals

Canadian business persons are eligible to participate in a special program designed to expedite the entry of frequent business travelers at selected international airports. The Passenger Accelerated Service System (INSPASS) was initially instituted for a six-month test period, but has been extended and expanded. The program is essentially an automated immigration inspection system that eliminates the live inspection interview for frequent business travelers and significantly reduces traveler processing time.

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