Dear lawyers , Does this statement of US - SIC means a former J - 1 with 212 requirement who is currently an F - 1 cannot change his status from f - 1 to j - 1 within the US ? In other words , I was a J - 1 student for 3 years ago . After my j - 1 finished , I went home I applied for an F - 1 . Now , I want to change my status to J - 1 scholar . Is that possible , given the following statement by US - SIC " a former J - 1 non immigrant subject to the foreign residence requirement , who is currently maintaining another non immigrant visa status , continues to be subject to the foreign residence requirement . As noted above , the former J non - immigrant is ineligible for a change of status until he or she fulfills the foreign residence requirement or obtains the appropriate waiver . "
FRR does not apply to nonimmigrant changes of status. They are only applicable to LRP applications. With that said, no matter what you do, when you are finally are finally ready to seek LPR status you will have to fulfill your FRR before being approved or seek a waiver and have it approved.
I agree with my colleague. Good luck to you.
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Dean P. Murray
The Murray Law Firm
560 Sylvan Avenue
Englewood Cliffs, NJ 07632
Being subject to the two-year foreign residence requirement creates three legal disabilities that do not go away until you obtain a waiver or fulfill the requirement. These are: (1) you cannot apply for H or L visa stamps; (2) you cannot apply for a green card; and (3) you cannot apply for an immigrant visa. Further, you cannot change status from J-1 to another nonimmigrant status in the United States, except A or G visa status.
You are currently in F-1 status, but you say you remain subject to the two-year foreign residence requirement. Under the literal language of the immigration statute (specifically INA § 248(a)(3)), you should be permitted to change status from F-1 to J-1. That said, the USCIS may not adhere to the statute because they are sometimes confused by J-1 issues. J-1 law is an arcane backwater of the immigration law. Further, there are some administrative decisions where change of status was denied under the same facts you present.
The fact that you are subject to the two-year foreign residence requirement may cause problems with a change of status application, which is filed on Form I-539. See question “h” on page 3 of this form. You will need to disclose that you were previously a J-1 exchange visitor by checking the “yes” box. You then need to provide the dates of J-1 status, along with proof of the J-1 status, such as the DS-2019. When the USCIS sees your answer and documentation, they may issue a Request for Evidence (RFE), or deny the request.
If the change of status does not work, you could always apply for a J-1 stamp at a consulate abroad.
For this reason, I suggest you consult with a lawyer that has specific experience in J-1 matters. Such a lawyer would be able to properly address this issue in the filing.
Hake & Schmitt
Attorneys at Law
P.O. Box 540 (419 Main St.), New Windsor, Maryland 21776
Required Disclaimer: This information is generalized and should not be relied upon as legal advice; and this communication does not create an attorney-client relationship.
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