I have a J-1 visa and and I am married to a US citizen. I am working for Dept. of Health and Human Services (NIH). Now, DHHS has applied for an H-1B visa for my behalf. I was sponsored by USAID in part for my Ph.D. and they have very tough standards for two year home residency requirement. In case of an unfavorable decision, what are my options for applying for permanent residence? Is hardship is the only choice left? Can my employer apply for O-1 visa if the requirements are met?

Under 8 CFR §248.2(c), if you are a J-1 foreign medical graduate engaged in clinical care, you are ineligible to change status to any other nonimmigrant category, even if a J-1 waiver is granted. Under 8 CFR §248.2(d), a J-1 alien other than a foreign medical graduate engaged in clinical care, who is nevertheless subject to the two-year home country requirement, is also ineligible for a change of status (except to the A or G categories) unless a J-1 waiver has been granted. Grounds for obtaining a J-1 waiver are discussed in my J-1 article.

Ineligibility for a change of status (as discussed above) does not bar the alien from leaving the U.S. and applying for a visa at a U.S. consulate abroad. However, under INA §212(e), no person admitted under J-1 who is subject to the two year-home residence requirement is eligible for an H or L visa unless they first satisfy the two-year requirement or obtain a J-1 waiver. Therefore, even if you applied at a consulate abroad, you would not be eligible for an H or L visa. You can apply for an O-1 visa at a U.S. consulate abroad if you are otherwise qualified.

INA §212(e), also makes J-1 aliens, who are subject to the two year home country requirement, ineligible for permanent residence. You will have no permanent residence options unless you have resided in your home country for at least two years or have obtained a J-1 waiver.

I am a Canadian citizen married to an American citizen. This April, I was offered a tenure-track job at a Californian university. A year and a half ago, we started the application for a family-based immigration visa. Now US immigration law has changed, requiring Canadians to be fingerprinted and checked by the FBI. This could delay the process by 4 months and my visa by 6 months, but the job begins in September. Can I get permission to work in the US before I get my immigration visa?

You could apply for TN status as a teacher (assuming that you have the credentials for a teacher under Appendix 1603.D.1 of NAFTA). However, the presumption of immigrant intent applies to TN status (unlike in the H-1B category). If the INS becomes aware of your pending petition for permanent residence when you apply for admission at a port of entry, they will most likely deny your admission on that basis.

In practice, INS officers at ports of entry do not ask about pending petitions unless they are already suspicious of your intent (immigrant v. nonimmigrant). Further, there is no requirement that you disclose this information to the inspecting INS officer unless you are asked about it.

If you have some concerns about applying for TN status in your situation, you may wish to apply for an H-1B. A teaching position at a university level which requires a bachelor degree or higher in the field would likely fall within the definition of "specialty occupation" for H-1B purposes.