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Im currently on h1b, plannng to move to j2 is that possible?

Customer Question
Im currently on h1b...

Im currently on h1b , plannng to move to j2 is that possible? i have my i140 approved

Lawyer's Assistant: Have you filed any paperwork with the USCIS (U.S. Citizenship and Immigration Services) yet?

No

Lawyer's Assistant: Have you talked to a lawyer yet?

No

Submitted: 8 months ago.Category: Immigration Law
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Answered in 5 minutes by:
9/27/2017
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 8 months ago
Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 112,988
Experience: Principal Attorney at Guillermo J. Senmartin, P.A.
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Hello! My name is***** and I am a licensed attorney with more than 15 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help. Also, please do NOT click on the Opt Out button because if you do, it would prevent me from communicating with you and then it could take a long time before another expert responds to you.

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Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 8 months ago

Sorry for the delay. I just ask that if it is bad news that you not shoot the messenger. Shooting the messenger is either leaving a negative rating (usually reserved for rude or unprofessional experts) or not leaving a positive rating at all.

What you are asking is possible, but not very smart to do. Why? Well, let me ask, is your J-1 spouse subject to 212(e), the two year home residency requirement?

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Customer reply replied 8 months ago
but my i140 is approved will that create a problem in conversion?
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 8 months ago

Unfortunately, yes. If your spouse is subject to 212(e) and you convert to J-2, you will also be subject to 212(e). This means that you will both have to go home for 2 years before you can get U.S. Lawful Permanent Residency (through you or through your spouse, it doesn't matter) or your spouse would have to get a waiver of 212(e). So yes, you can change status from H-1B to J-2, but it would not be wise to do so if your spouse is subject to 212(e).

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, you may have to scroll up to the top of the page or click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

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Customer reply replied 8 months ago
but my question is will there be any concern as i have my i140 already approved.
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 8 months ago

Well, as you may be aware, both the J-1 and the J-2 require non-immigrant intent. Having an approved I-140 is evidence of immigrant intent. So there is a risk of denial of the change of status to J-2 anyway and it could also result in an issue for your spouse that is on J-1. So either way, for both reasons, I would avoid the change of status.

Let me know if you need anything else, but please do not forget that positive rating. Thank you!

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Customer reply replied 8 months ago
why would it affect my spouse j1?
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 8 months ago

Because she is also required to have non-immigrant intent to be on J-1 and if you end up getting a jerk officer that wants to be a jerk, if you are asking for J-2, it is because you have a spouse on J-1 and on your I-140, your spouse is also most likely listed. So if they wanted to be a jerk, they could revoke your spouse's J-1 as well.

I'll give you an example of how it could work. Let's say you and your spouse are from India. And let's say your I-140 is in EB-3 category and you have a Priority Date of January 1, 2017. Currently, you would be looking at about a 10 to 11 year wait to be able to use the I-140. So you apply to change status to J-2 and the office asks to prove non-immigrant intent. You are able to convince the officer that you just want to stay in the U.S. until your spouse's program is over, let's say in 2019, and that your intention is that both of you will return to India for 2 years to complete the 212(e) requirement and wait for the green card outside. Maybe you both may come back in the future on H-1B that allows dual intent, but that would remain to be seen. In such a case, then officer could approve the change of status to J-2 because at this time you have proven the intent to go back home.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. If you do not see the stars or smiley faces, please scroll to the top of the page to see them or click on my name and they should come out. Also, we do NOT finish just because it says "Rate to Finish" or something like that. Your question does NOT close and you can continue to ask questions without additional charge on the same question thread even after you leave a positive rating. Thank you for your understanding!

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Customer reply replied 8 months ago
okay..then how about changing to f1 visa?
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 8 months ago

Better, but you still have the problem of proving non-immigrant intent. How will you do that?

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Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 8 months ago

If you cannot prove non-immigrant intent, they will not approve an F-1. What country are you from? What category is your I-140 in? What is your Priority Date?

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