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  1. #1
    Join Date
    Nov 2009
    Posts
    2

    Unhappy SEVIS Problems After Having Approved H-1 (on an Active J-1)

    Hi

    I am currently in J-1 status as a researcher working for a certain company according to the conditions of the exchange program. I am under the 2 years home residency requirement. At some point the company lawyers offered me the option to apply for a H-1b on my behalf and (a decision which I greatly regret right now) I have accepted (in my view I wished to complete the exchange program normally, at the same time at some point apply for the waiver and after having it approved consider a change of status from J-1 to H-1).

    However, it seems that the DHS wrongly (that's what the immigration lawyers employed by the company say) updated my SEVIS record showing an updated end date of the exchange program on the same day as the start date of the H-1. This date is much more recent then the original end date (I may not even have time to pack my things) of the J-1. Because of the 2 years home residency requirement I can't just travel home and have the H-1b stamp issued and return on H-1, I actually need to go through a lengthy (probably a few months long) process to get the waiver first. Since it seems I am unable to get any straight answer from the company lawyers I am looking for a second opinion (even if that it's just me having to read a lot of documentation online on the subject).

    My questions are:

    1. is that possible? the DHS mistake? (I mean have you ever heard of something similar, does it sound likely?) Also do you think just the application process and having a H-1b approved means that I have started a "change of status" so it makes sense for DHS to update the end date of the J-1 exchange program?

    2. on my I-94 I have a D/S end date, does that mean that after the new SEVIS updated end date (but not reflected on my DS-2019 which obviously have the old end date) of the program any day present in the US I am out of status? (ie do I get the 30 days time to pack up at least or do I have to leave immediately as I've read on some site which happens in cases of interruption or termination of the exchange program)

    Thank you!

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: SEVIS Problems After Having Approved H-1 (on an Active J-1)

    You can't simultaneously be in J1 and H1B status. If the change is recorded as the date you commence H1B Status, that's correct. If not, please explain things a bit better.

    If you changed status from J1 to H1B, I would have expected you to get a new I-94. Did that happen with the new H1B being marked something like "D/S AOS" (Duration of Stay, Adjustment of Status)?

  3. #3
    Join Date
    Nov 2009
    Posts
    2

    Default Re: SEVIS Problems After Having Approved H-1 (on an Active J-1)

    Sure it would not make sense to be on both J1 and H1 status at the same time. But my question then is, when it is considered that I am on H1 status, isn't that from the moment that I enter the country on a H1 visa?

    I mean sure, I applied for H1, it got approved and it has a start date say 1 Dec. For me to actually enter the US on a H1 visa I would have to:
    1. get a home residency requirement waiver
    2. if I receive that, go to some US embassy (outside US), apply for the H1 visa stamp (deposit the necessary documents), get that and then re-enter US with the new shiny H1 visa

    So I thought the 1st of Dec H1 start date just means that's the first day I can enter the US under a H1 visa but I can ignore it and do all these steps at a later time.

    Or you mean all that does not matter and that somehow automatically by Dec 1 my J-1 status will end and I have to leave the country (btw do I get the 30 days option after the J1 end of the exchange program?) and come back on H1 after I get points 1/2 resolved.

    edit: Forgot to mention, where do I look to see if the H1 is a D/S H1? Also, my J-1 I-94 is actually a D/S one.

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