Lauderhill, FL Immigration Law Firms & Lawyers

Thanks for your inquiry. The answer is that you can file for the J-1 foreign residency waiver and the H-1B at the same time, however the process is much more complicated than telling you that you can file both applications at the same time. The H-1B visa system is limited by the number of new "cap subject" visas that are available every government fiscal year. H-1B visas for Fiscal Year 2013 (FY 2013) are now available but these visas cannot be used until October 1, 2012. What this means is that even if you are lucky enough to obtain a "cap subject" H-1B for FY 2013, the start date for the work associated with this visa is no earlier than October 1, 2012. So this means that you must maintain lawful nonimmigrant status until that time if you are looking at some point to change status form the J-1 to an H-1B. Now to complicate this even more, you are ineligible to apply for change status until you have obtained the J-1 foreign residency requirement waiver. So you may "capture" a "cap subject" FY 2013 H-1B visa and NOT be in a position to use it in the US because you have not yet obtained the J-1 waiver. The law is clear that any foreign national who is subject to the foreign residency requirement is NOT eligible for consideration of an application for change of status from a J-1 to an H-1B. My recommendation is that you consult with an attorney who can provide you the guidance that this work requires. What I would suggest is that you work both ends of this at the same time. File the H-1B to capture the FY 2013 cap subject visa number and then if you are able to obtain the J-1 visa waiver, you may be able to successfully change status from J-1 to H-1B in the US without having to leave. But this carries with it a lot of presumptions and a number of stars that must align so that all of this works correctly and within the time frame that you have available. This is certainly a workable case, but you will go all sorts of nowhere if you put the wrong legal service provider to work on it. This case calls for a careful coordination of efforts and someone who understands the complicated procedures that will be required to make this work. Good luck.

Unless there are other factors such as a prior petition filed before mid 2001 he will have to process outside the country. He will need a waiver to return unless he waits 3 or10 years depending on how long he has overstayed

This may be impossible for ten years unless he returns to his home country and waits 10 years. He committed a Federal Crime, when he returned without advanced permission and inspection by the CBP. He can be convicted incarcerated as a result. For legal advice, I strongly recommend an appointment with an experienced immigration attorney.