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J-1 waiver pending and potential H1B case

San Jose, CA |

I am under the process of a J1-visa waiver. Without J1-waiver, am I not able to apply for an H1B visa for this years cap? I actually learned I needed the waiver pretty late (only a few months ago so late noevemer was when the application for the wavier was submitted and it takes 3-5 months).

If the waiver process is complete by APril 1, I know it's ok to then apply for H1B, but what if it isn't? Will USCIS accept the petition if the waiver process is still pending? SHould I just hope that the waiver is approved before the first week of April?

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Attorney answers 5


In order to change status from that of a J-1 visa holder, without going home for 2 years, one must apply and receive a waiver.

This answer is not intended to replace a consultation with an attorney and does not create an attorney-client relationship.


Yep. No waiver - no change of status. This is absolutely correct.

The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter,not should it be viewed as establishing an attorney client relationship of any kind.


Yes you definitely need a waiver. You can apply for the H1B, however, it would be speculative to give you an answer on chances of H1B approval while pending J-1 waiver, without knowing the prospects of your waiver approval

If you don't have an immigration attorney, you should immediately contact one.


Alexander M. Ivakhnenko

Alexander M. Ivakhnenko


I would think so.


A good option would be to have your potential employer file an H-1B petition without requesting a change of status on April 1. Therefore, assuming your J waiver is approved between April and October, you could leave the U.S. and obtain your H-1B visa abroad.

Mr. Shusterman's (former INS Trial Attorney, 1976-82) response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


I concur with my esteemed colleagues that the J-1 successful grant of the Waiver is an absolute necessity to proceed with any stated options above.

DISCLAIMER The answer given above by the lawyer serves for educational purposes only and provides general information and a basic understanding of the applicable law. Take notice that the answer above does not create an attorney-client relationship as this website is not intended to provide anyone a specific legal advice. Anyone using the site expressly consents that there is no attorney client privilege between any person and any attorney responding. Further take notice that the site should not be used as a crude substitute for any professional and competent legal advice by a licensed professional attorney in the applicable jurisdiction. The attorney above attempted to provide competent professional opinion, however, the law and its applications may change frequently and vary greatly from other U.S. jurisdictions and locales. Therefore, any information and opinions stated above are general in nature, and may not apply to specific factual or legal circumstances related to one's current legal issues. Contact an experienced lawyer admitted to practice in your State under an attorney-client privilege to further receive a comprehensive legal before making an educated decision about your particular legal issue. Respectfully, Attorney Alexander Ivakhnenko, Chicago, Illinois