us-uscis-policy-manual-volume-2-part-d-chapter-5•Chapter 5 - Change of Status, Extensions of Stay, Program Transfers, and Reinstatement
Chapter 5 - Change of Status, Extensions of Stay, Program Transfers, and Reinstatement
us-uscis-policy-manual-volume-2-part-d-chapter-5Chapter 5 - Change of Status, Extensions of Stay, Program Transfers, and ReinstatementGuidance
A. General
Section 248 of the Immigration and Nationality Act (INA) 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.[1] The applicant must meet all eligibility criteria for the new category.[2]
A J-1 exchange visitor who is subject to the 2-year foreign residence requirement under INA 212(e), and who has not received a waiver of that requirement, can change only to A, G, T, or U status.[3]
B. Change of Status from J-1 to H-1B
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.[4] To qualify, the FMG must be otherwise eligible to apply for a change of nonimmigrant status.[5] This includes the requirement for timely filing of the Petition for a Nonimmigrant Worker (Form I-129), requesting change of status.
However, FMGs who obtain a waiver based on exceptional hardship or persecution (under INA 212(e) itself, rather than INA 214(l)) are statutorily ineligible for change of status pursuant to INA 248.
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.[6] Additionally, a J-1 exchange visitor who has obtained a waiver based on INA 214(l) is not subject to the H-1B cap.
C. Change of Status from J-1 to J-2
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.[7] 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.
D. Extension of Stay, Program Transfers, and Reinstatement Requests
A request for an extension of stay or a program transfer must be filed with the U.S. Department of State (DOS).[8] An exchange visitor’s request for reinstatement must be filed with the DOS after consultation with the program sponsor.[9]
Footnotes
[^ 2] See Volume 2, Nonimmigrants, Part A, Nonimmigrant Policies and Procedures, Chapter 4, Extension of Stay, Change of Status, and Extension of Petition Validity [2 USCIS-PM A.4].
[^ 3] 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).
[^ 4] See INA 214(l)(2)A).
[^ 6] See 8 CFR 214.2(j)(1)(vi).
[^ 7] See 8 CFR 248.2.
[^ 8] See 22 CFR 62.42 and 22 CFR 62.41(a)–(b). For information about J-1 program extensions, transfers, and reinstatements, see DOS’ Adjustments and Extensions webpage.
[^ 9] See 22 CFR 62.45.
Resources
22 CFR 62, Subpart B - Specific program provisions
8 CFR 212.7(c) - Waiver of inadmissibility grounds, documentary requirements
8 CFR 214.1(c)(5) - Decision on application for extension or change of status
8 CFR 214.2(j) - Exchange aliens
8 CFR 214.2(q)(5)(ii) - Petition for multiple participants
8 CFR 248.2 - Change of nonimmigrant classifications, ineligible classes
INA 101(a)(15)(J) - Definition of J nonimmigrant
INA 212(e) - Educational visitor status; foreign residence requirement and waiver
INA 212(j)(1) - Limitation on immigration of foreign medical graduates
INA 214(c) - Admission of nonimmigrants
INA 214(l) - Restrictions on waiver
INA 214(l) - Restrictions on waiver of the foreign residence requirement
Appendices
No appendices available at this time.
Updates
This technical update replaces all instances of the term “noncitizen” with “alien” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”], and makes other technical and conforming changes.
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole
4 USCIS-PM - Volume 4 - Refugees and Asylees
5 USCIS-PM - Volume 5 - Adoptions
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the nonimmigrant exchange visitor (J) visa classification, including USCIS’ role in the adjudication of waivers of the 2-year foreign residence requirement and change of status requests under the Immigration and Nationality Act (INA).
This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. This guidance becomes effective October 2, 2020. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary.
1 USCIS-PM A - Part A - Public Services
1 USCIS-PM B - Part B - Submission of Benefit Requests
2 USCIS-PM - Volume 2 - Nonimmigrants
7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures
7 USCIS-PM F - Part F - Special Immigrant-Based Adjustment
7 USCIS-PM M - Part M - Asylee Adjustment
11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures
U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk between the AFM and the Policy Manual.
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole
4 USCIS-PM - Volume 4 - Refugees and Asylees
5 USCIS-PM - Volume 5 - Adoptions
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
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