Immigration Issues/J-1 visa to H1B

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Question
QUESTION: I am planning to file H1 b visa becoz my employer is ready to sponser my H1 visa. Currently i am on J-1 visa working as a teacher. it gets expire on 9th september 2012. I heard that new H1 B visa will allow me to  work from 1st october 2012. if my petiton got approved then can i work for those 21 days means from 9th sep 2012 to 1st october 2012.

ANSWER: Hi,

There is a 30-day grace period in J visa status, which will allow you to remain legally in the U.S. while the H1B petition is pending with the USCIS, assuming that the H1B petition is filed no later than Oct. 08, 2012.

However, you cannot be employed after Sep. 09 until H1B petition granting you change of status to H1B has been approved by the USCIS.

---------- FOLLOW-UP ----------

QUESTION: it means u r saying that even if my H1 b petition got approved i can not work for the period from 9th september 2012 to 1st october 2012.

Becoz i heard H1 b visa starts usually from 1st october. or you are saying that if USCIS approved my change of status to H1 B then i can work for this period.

ANSWER: The H1B petition can be filed requesting start date no earlier than Oct. 01, 2011. However, it typically takes 3 months for H1B petition to be approved, unless it is filed through premium processing. Thus, if the H1B petition is approved on, for example, Dec. 05, you cannot be employed between Sep. 09 and Dec. 05.

---------- FOLLOW-UP ----------

QUESTION: but what if i file my H1-b petition in April 2012, and say it got approved in next 3 months around,3th june 2012 with a starting date october 1st, 2012. Then also i can not work from  9th september 2012 to 30th september 2012, becoz my J-1 visa got expired on 9th september and start date for H1 b is 1st october

Answer
Hi,

I have to revise my earlier answer. I had mistakenly assumed at one point in my response that your J1 status expired in Sep. 2011 (instead of 2012).

The following revisions to my earlier answers apply:

You can continue to be employed in J1 status until Sep. 09, 2012. The H1B petition can be filed anytime prior to the visa cap being reached. When the H1B petition is approved, you will be in H1B status.

As you can hold only one status at a time in the U.S., when H1B petition is approved granting change of status to H1B, you will no longer be in J1 status. Upon approval of H1B petition you should start working for the H1B employer. However, you cannot work for the H1B employer until approval of H1B petition granting change of status to H1B.

The H1B petition can be filed in April, 2012 requesting start date of Oct. 01, 2012. The H1B petition can request an immediate start date (or start date anytime prior to Oct. 01,2012) if the visa cap for fiscal year 2012 has still not been reached: http://www.uscis.gov/h-1b_count

However, if the visa cap for FY 2012 has been reached, then the H1B petition filed in April, 2012 can request employment start date no earlier than Oct. 01, 2012. You can continue to remain legally in the U.S. between Sep. 09 and Oct. 01, 2012, but you cannot be employed until H1B status takes effect (you will need to check H1B approval notice for employment validity dates).

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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