Chapter 5 - Change of Status, Extensions of Stay, Program Transfers, and Reinstatement

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

[^ 1] See INA 248. 

[^ 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).

[^ 5] See INA 248.

[^ 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.