Terra Ceia, 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.

I assume that you are a U.S. Citizen. If so you have to petition your husband by filing an I-130 petition. If he is not in the U.S. you can immigrant visa/consular processing which will take about 1 year. If he is in the U.S. he can file for adjustment of status (Form I-485) at the same time as the I-130 petition. It would take about 2-3 months for him to receive his work permit and 4-6 months to receive his Green Card. However, you have to be careful about your husband traveling to the U.S. on his visitor visa if you are U.S. citizen and file an petition or intend to petition him. He could have a problem at the border/airport if USCBP believes he is not coming to visit, but his coming to live in the U.S.

The entire process for your wife's immigration will take 3-4 months. Yes, she would get a work permit in about 2 months. The government fee is $1,490 and I charge $2,500 for cases such as these (with 1/2 to start and the other 1/2 when the case is prepared and ready to file).