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Immigration Options Upon J-1 Expiration 1999 At the outset, there are two points which need to be stressed. First, it is my sincere opinion that there are oftentimes profound consequences to overstay decisions which makes it inappropriate for the academic advisor community to provide specific advice to specific individuals. Rather, to a perhaps unparalleled extent, J-1 Exchange Visitors should most definitely seek legal counsel from members of the legal profession regarding the consequences of staying beyond their program durational limit. Second, in no sense does this article encourage a J-1 Exchange Visitor or any other nonimmigrant to overstay. Rather, the sole purpose is simply to discuss the consequences of any decision undertaken by an individual in J-1 status to remain without authorization beyond the expiration date of his/her period of J-1 eligibility. In most instances, a J-1 medical trainee possesses J-1 authorization through the training year, which ends on June 30. Thereafter, the J-1 Exchange Visitor is granted an additional 30 day period of non-employed authorized J-1 status in order to depart from the United States. In many instances, a J-1 physician has undertaken the initial steps in order to qualify for a waiver of the two year home residence requirement and/or a change into H-1B status, but simply finds that there is not enough time in order to qualify for an H-1B visa prior to the expiration of the period of J-1 eligibility. The necessity of fully understanding the various options open in this situation is now particularly important owing to the passage of the Illegal Immigration Reform and Immigrant Responsibility act (IIRAIRA) which creates significant penalties for an expanded class of foreign nationals who live without authorization (i.e., illegally) in the U.S. for extended periods of time. For example, may foreign nationals who live in the U.S. illegally for 180 consecutive days after April 1, 1997 may face a three-year bar to becoming a permanent resident or qualifying for an H-1B visa; those who accumulate 360 consecutive days in illegal status may face a 10 year bar. Furthermore, periods of over 180 days in the aggregate spent in unlawful status following admission to the United States - including periods of unauthorized employment - could bar a foreign national from adjusting to permanent resident status (although it may not disqualify such an individual from processing for your immigrant visa abroad.) In short, foreign nationals have major ethical and legal reasons to take all possible actions so as to preserve their lawful status in the United States. Particularly within the J-1 physician community, there is an expanded class of individuals who face an additional delay in processing for status owing to the depletion of the H-1B visa numbers. Under current law, there is an annual cap of 195,000 H-1B numbers. Owing to a variety of circumstances including the expanding U.S. economy which has led many businesses to utilize the H-1B classification to an unprecedented degree and a major depletion in the H-1B numbers from 1998's (1998) spillover, there has been a substantial drawdown in the H-1B numbers. Last year (1998), the H-1B numbers were used up on May 11, 1998; at present, we expect to see an exhaustion of these numbers sometime this spring - probably sometime in May. The new H-1B numbers will become available in October 1999. Given the fact that all J-1 trainees who receive §212(e) waivers on the basis of recommendations from government agencies have an obligation to reside in H-1B status, the exhaustion of these H-1B numbers is a matter of particular concern. A J-1 Exchange Visitor who is nearing completion of the program period has the following options to consider. A. J-1 Extension Perhaps the most desirable strategy would simply be to gain an extension of current J-1 status. The mere filing of a waiver will not impede the grant of an extension. However, the current operative policy within USIA is to disallow J-1 program extensions for J-1 Exchange Visitors whose waivers have been adjudicated by the Agency, except in the sole instance in which a J-1 extension is requested in order to sit for a Specialty Board examination. Specifically, under previous policy, the mere filing of a waiver request would destroy a J-1 physician's eligibility to extend status. However, the ECFMG has been instructed to issue IAP-66 forms for J-1 extension purposes even while a waiver request is under review by an interested U.S. government agency. It is only upon issuance of a final adjudication at USIA that a J-1 trainee loses his/her eligibility to gain a J-1 extension. Naturally, the filing of a waiver needs to be divulged on the J-1 extension application, but this factor alone will not lead to disqualification for an extension unless the USIA has issued a final waiver determination. Furthermore, the USIA last year (1998) issued a directive which allowed J-1 physicians holding final waiver approvals from the USIA to gain extensions of their J-1 status for the sole purpose of taking their Board examinations. This new directive was issued specifically in order to ameliorate some of the inconvenience arising from the exhaustion of the H -1B numbers. The USIA recently announced that it will continue this policy in FY1999. B. Simply depart the United States until a waiver has been granted Under this scenario, a J-1 Exchange Visitor would leave the United States for the period of time required in order to finalize the waiver and then reenter the United States under an H-1B visa. Please note that the new H-1B numbers will become available on October 1, 1999. Obviously, there are certain uncertainties as to the time during which the J-1 Exchange Visitor would need to be abroad, primarily connected with the final processing of his/her J-1 waiver. If a J-1 Exchange Visitor subject to the §212(e) obligation does depart, he/she would not be able to apply for an H-1B visa until he/she has received the final approval from the INS* of the J-1 waiver. (In contrast, the Immigration and Naturalization Service will normally approval H-1B petitions/change of status applications based on the USIA waiver recommendation, per a directive issued on February 17, 1998). C. Voluntary Departure/Employment Authorization There are provisions in the Immigration Regulations which could enable a J-1 Exchange Visitor to apply to a local INS District Office for a period of special resident status, known as Voluntary Departure. This would enable the J-1 to remain temporarily in the United States provided he/she can show the existence of compelling humanitarian factors and the likelihood that legal status will be granted in the relatively near future. Along with this request for Voluntary Departure, it had previously been possible to apply for Employment Authorization. The factors relevant to this request included: the length of period of Voluntary Departure, the existence of a dependent spouse and/or children, the reasonable chance that legal status will ensue in the near future, the existence of an economic need to work, and the potential benefits of the J-1's employment, which in the past was highly relevant to physicians taking up job opportunities in designated medically underserved communities. However, this strategy approach is simply no longer relevant owing to certain legal changes which went into effect from recent immigration legislation which limits the maximum period of Voluntary Departure to 120 days. Even if this benefit is granted, a foreign national will no longer be able to get Employment Authorization. As such, this option of Voluntary Departure will not be of significant relevance to J-1 Exchange Visitors other than for very short periods of time required to complete immigration processing. D. Remain illegally in the United States While I am not advocating or in any manner encouraging anyone to remain in the United States without authorization, this section deals with the various ramifications of a decision to remain without authorization beyond the expiration date of J-1 status. If any foreign national remains in the United States without authorization, he/she would potentially be subject to a removal (i.e., a deportation) action. Even if the INS were to commence deportation proceedings, in many instances it would be possible to arrange for a termination of these proceedings in return for the unequivocal promise to depart the United States within a stipulated period of time (i.e., Voluntary Departure). In this instance, the foreign national would normally be able to promptly reenter the U.S. under a valid visa which, in the paradigm of this paper would occur following final approval of both the waiver and your employer's H-1B petition. In addition, our immigration laws also contain provisions which substantially penalizes a broad class of foreign nationals who reside unlawfully in this country. Specifically, many foreign nationals who reside unlawfully in the United States for over 180 days will face a 3-year bar to reentering this country; periods of unlawful presence in excess of 360 days generally result in a 10-year bar from this country. In addition, many foreign nationals who reside for any period of time without authorization - even one day - become barred from processing for their nonimmigrant visas through third countries and must instead apply for any such visas only within their home country. Fortunately, J-1 physicians and most other Exchange Visitors are largely exempted from the draconian provisions which are described above. Owing to the fact that most J-1 Exchange Visitors are issued I-94 cards which have been endorsed as "D/S" (i.e., duration of status), they will not accumulate any periods of unlawful presence so as to invoke these 3/10 year potential bars, even if they reside beyond the date appearing on the IAP 66 form. Furthermore, they will continue to remain eligible to apply for an H-1B or other nonimmigrant visa through a U.S. Consulate in a third country (generally, Canada or Mexico). The underlying policy for this exemption for J-1 Exchange Visitors lies in the fact that their I-94 card does not stipulate a date certain beyond which they accumulate periods of "unlawful presence"; rather, the designation of "D/S" is, in a sense, an amorphously stated end date so as to spare most J-1s from facing certain statutorily-imposed harsh penalties should they overstay their authorized period of J-1 status. (However, if the INS makes an affirmative determination of J-1 status and specifically enters a date certain on the I-94 card, here the J-1 Exchange Visitor would be subject to the above-stated penalties.) However, certain violations of status will present potential complications when the time comes to get permanent resident status. In the event that a J-1 Exchange Visitor accumulates in the aggregate periods in excess of 180 days following admission to the U.S. in which he/she fails to maintain lawful status - including periods of unauthorized employment - he/she could be barred from adjusting to permanent resident status here in the United States. Please note, though, that this does not preclude a foreign national from processing for an immigrant visa through a U.S. Consulate abroad; rather, it merely serves as a preclusion to adjusting to permanent resident status in the United States. Furthermore, please remember that J-1 physicians holding waivers through interested government agencies need to fulfill a three-year period in H-1B status. If such an Exchange Visitor maintains continuous lawful residence, he/she will be able to change from J-1 to H-1B status here in the United States. However, if such a foreign national falls out of status prior to filing the H-1B petition and change of status application, he/she will instead need to process for an H-1B visa through a U.S. Consulate abroad. Therefore, Exchange Visitors should be aware of the following factors (assuming, of course, that a final removal order has not been issued): 1) that a period of unauthorized residence will not necessarily prevent such a foreign national from becoming a permanent resident; 2) that J-1 Exchange Visitors holding an I-94 card endorsed as "D/S are not subject to the 3/10 year bars or to restrictions on the ability to apply for an H-1B visa through a third country such as Canada or Mexico; 3) that periods in excess of 180 days following admission spent in unlawful status, unauthorized employment, or in violation of admission could bar an Exchange Visitor from adjustment to permanent resident status although it may not preclude him/her from processing for permanent resident status through a U.S. Consulate abroad. Again, though, please remember that J-1 physicians holding waivers through interested government agencies will not become eligible to apply for permanent resident status until they have fulfilled a three-year period in H-1B status. E. Reside in the United States Pending Adjudication of a Timely Filed H-1B Petition In some instances, it may be possible to prematurely file an H-1B petition- i.e., file the petition prior to the expiration of J-1 status. Based on 1998's situation, we expect that the INS will continue to receive and process H-1B petitions even after the H-1B numbers run out with the understanding the approvals can only be issued as of October 1. In the event that an H-1B petition is timely filed, please note the following:
* At the time this article was written, the Immigration and Naturalization Service (INS) served as the main immigration body of the U.S. Government. Since March 2003 immigration processing functions are a part of the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). |
Aronson & Associates, P.A. |