How to go from Visitor or
Student to
Worker Status
Jennifer Wipf: Welcome
to our chat on going from student or visitor to worker status, with our guest Carl
Shusterman, Esq. I am turning moderation on now, and I will take more questions as we go
along. Please remember that these questions are of a casual nature, and should not be
construed as legal advice.
Question #1: Can I
change my visa status from visitor to worker right here? Or do I have to go home?
Carl Shusterman: Section
248 of the Immigration and Nationality Act provides, with certain limited exceptions, that
a person who enters the United States on a temporary visa can change to another type of
temporary status without leaving the United States. Applications for a change of status
are made to the INS. For more information, see :
http://shusterman.com/toc-temp.html
and scroll down to
"How do I get permission to change to a new temporary status?"
Question #2: If it's
illegal to search for work while I'm here, how can I get around that? I'm on a visitor's
visa.
Jennifer Wipf: Ok, I
have all questions. Pls. be patient :)
Carl Shusterman: If
a person enters the United States as a tourist, and after a certain length of time, say 60
days, decides that he would like to work in the United States, there is nothing illegal
about interviewing for jobs while he is in tourist status. If he finds a job, and he is a
professional, his future employer may be able to petition him for H-1B status and he can
change his status without leaving the United States.
What would be illegal is if he started working before the change of status was approved by
the INS. What would be fraudulent, is if he came to the United States as a tourist, but
his real intent, all along, was to work in the United States.
If a tourist immediately requested a change of status within his first two or three weeks
in the US, rest assured that the application would be denied by the INS.
Question #3: Do I have
to leave the country to get my H-1B visa if I am here on a visa waiver right now?
Carl Shusterman: A person on
a visa waiver is not eligible for either a change of status or an extension of status. If
an employer petitions for such a person for a working visa, the person must depart the
United States and apply for a visa abroad. See:
http://shusterman.com/toc-temp.html
and scroll down to the "Visa Waiver Pilot Program".
Question #4: When and
how can a foreign student work in the USA?
Carl Shusterman: In
general, both the F-1 and M-1 student visas do not allow their holders to work in the
United States. However, there are many exceptions to the general rule. For instance, work
study programs, on-campus employment,
practical training, etcetera.
For a discussion of these exceptions see:
http://shusterman.com/toc-student.html
and scroll down to "Employment Options For F-1 Students".
In my practice, I see a lot of recent university graduates. Most of them are eligible for
a one-year work card commonly known as practical training. At
http://shusterman.com/toc-au94.html
you can find a step-by-step guide for obtaining practical training, changing to H-1B
status, and ultimately becoming a permanent resident.
Question #5: What is
the best source of information on companies willing to sponsor H-1B visas? Is it advisable
to use the services of an employment agency?
Carl Shusterman: Although
the INS does not publish a list of all companies who sponsor professionals for H-1B visas,
I've searched the web and compiled a list of over 100 top companies and employment
agencies who sponsor for H-1B visas.
These links go directly to the career centers at various high-tech and low tech employers
all across the United States.
See the list at:
http://shusterman.com/toc-job.html
Question: I am on J-1, but have a job offer, what do I need to do to void the 2 year home
requirement?
Carl Shusterman: There
are 3 reasons why a person on a J-1 exchange visitor visa might be subject to a
requirement which compels them to return to their home country before obtaining either an
H or L status or permanent residence in the US.
Foreign born physicians who do graduate medical training in the US are always subject to
this requirement.
Persons who have received funding from either their own government or from the U.S.
government are usually subject to this requirement.
Finally, persons who have occupations or specialties which appear under the exchange
visitor skills list for their country are subject to the two year requirement.
Let me briefly list the four methods of obtaining a waiver of this requirement. And after
this list, I will refer you to a place on my site where you can obtain more detailed
information.
The four methods are as follows:
1) The No Objection Letter,
2) The Exceptional Hardship Waiver
3) The Asylum Waiver,
4) The Interested Government Agency Waiver
For more information about J-1 status and how to obtain a waiver, see:
http://shusterman.com/j-vsa.html
Question #6: When INS
will start adjudicating H-1B petitions towards the 2001 cap?
Carl Shusterman: On July
20th, the INS announced that all H-1B petitions for the current fiscal year had been
approved.
In their statement, they announced that they would begin processing petitions for H-1B
workers whose employment will start on or after October 1st, 2000, during the month of
August 2000. To read the INS statement and their FAQ on H-1B visas, see:
http://shusterman.com/h1b-ins72000.html
Question #7: Do you
know how long will it take for no objection waiver being approved? I have handed in my app
and all the materials for 5 1/2 months and still hear nothing?
Carl Shusterman: On
October 1st, 1999, the US Information Agency (USIA) was absorbed into the State
Department. The transition was far from seamless, and the processing times of J-1 waivers
skyrocketed. Now, thanks to a group of
concerned immigration attorneys, and a State Department official named Steve Fischel,
State Department backlogs on J-waiver cases have all but been eliminated. What took the
State Department 4-5 months to decide back in February and March, they can adjudicate in a
matter of weeks today.
I know there are some old cases that never made it out of the system. A number of
persons seeking J-waivers have come to us and we have been able to resolve the problem on
their behalf.
Question #8: If I enter the
USA on a B2 visitors visa when I have an H-1B application pending, is that a problem?
Carl Shusterman: I found out
back when I used to work for the INS that whatever happens at the airport is very
unpredictable.
In general, having an H-1B petition pending on your behalf will not stop you from entering
as a visitor. However, INS immigrant inspectors at the airport see a lot of fraud, and
tend to become very skeptical, if not cynical.
If the immigrant inspector learns that you have an H-1B petition on file, he may assume
that because H-1B numbers are not presently available, you may be entering on a tourist
visa with the intention to work prior to the approval of your H1-B petition.
Carl Shusterman: If he finds
that you are subject to Summary Exclusion, you will not be able to re-enter the United
States for a period of 5 years.
Your best course of action may be to wait until you obtain an H-1B visa before
entering the United States.
Jennifer Wipf: Ok, everyone,
it looks like Carl's time is up. We didn't take some of the very-specific questions
because they pertain only to one person, and the goal is to help many. If you would like
to get our feedback on something, suggest future chat topics, or receive guidelines on how
to ask questions in chats, please e-mail me at: immigration.guide@about.com
and I will reply.
We are grateful that Carl was here to respond so well to many of these issues.
Carl Shusterman: Thanks for
all the great questions today, please join us on August 14th for our next chat, "How
to Apply for the Green Card Lottery -- Without Paying a Lawyer!"
The State Department published the official instructions for the DV-2002 visa lottery
earlier today. They are posted on our site at:
http://shusterman.com/toc-lottery.html
Be sure to read them, and come back with your questions about the immigration lottery
on August 14th. Good night!
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