Ask a Lawyer

Q My sister will come to the United States on a B (visitor) visa. She is a physician from India. Can she change her status to F-1 (student) or H-1 (specialty occupation)?
A It takes six to nine months to process the application to change to a student visa. This is not the best option, because if she enters on a B visa, the change of application will take a long time and create unnecessary problems for her if the change of status is not approved. The United States Citizenship and Immigration Services (USCIS) normally does not allow change of status to F-1 within the United States.
An employer can technically sponsor your sister for an H-1B work visa. However, the change from visitor to work visa will not be possible until April 2009 because of quota issues. The quota has been historically filled in the first couple days.
The only way to get an H-1 visa would be to work for a non-profit or research organization which is not subject to the H-1B visa quota. The USCIS states that applications for new H-1B employment visas are exempt from the cap if the applicant will work at the defined institutions of higher education, or a related or affiliated non-profit entity, or at a nonprofit research organizations or governmental research organization. Thus, employers may continue to file petitions for these exempt H-1B categories regardless of H-1B visa number availability.
According to the H-1 Base Research Department, there are currently over 44,000 potential cap-exempt job advertisements from non-profits organizations, and there are currently over 170,000 potential cap-exempt job advertisements from academic institutions.
Another option which might be available for your sister is the J-1 visa. The J-1 visa is designated for educational and cultural exchange programs designated by the U.S. Department of State and the Exchange Visitor Program and Designation Staff. The J-1 exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences.
Individuals who may come to the United States for training have been approved by the Department of State in the following fields: au pairs, camp counselors, college and university students, government visitors, international visitors, physicians, professors and research scholars, secondary school students, short-term scholars, specialists, teachers, and flight trainees.
Here are the requirements for obtaining a J-1 visa: A non-immigrant exchange visitor and his or her accompanying spouse and minor children may be admitted into the United States in J-1 and J-2 classifications if the exchange visitor and accompanying spouse and children each presents a SEVIS Form DS-2019 issued in his or her own name by a program approved by the Department of State for participation by J-1 exchange visitors. In order to work as physician, your sister will need to clear the USMLE exams; however, there might be other positions available. J-1 sponsorship are done through U.S. Department of State approved sponsors only

Madan Ahluwalia has been practicing law since 1995. He can be reached at [email protected] Visit his website at


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