Travelling to the US as tourist while also having a J-1 application running

Question

I am planning a trip to Canada (have my eTA) and would like to go to the US for a month afterwards, also as a tourist. However, I am also applying for a J-1 Visa right now because I will start a job as scholar there in January. Is it illegal for me to enter the US on a VWP while applying for a J-1?

In the disclaimer for the ESTA it says: "you may not apply for: 1) a change of nonimmigrant status, 2) an extension of stay, or 3) adjustment of status to temporary or permanent resident, unless eligible under section 245(c)(4) of the Immigration and Nationality Act."

This confuses me a bit.

I hope someone can help me out!

Answer 1

Is it illegal for me to enter the US on a VWP while applying for a J-1?

No. For a separate trip as a tourist that does not involve participation in a J-1 program, you need either a valid ESTA or a B visa (B-2 or combination B-1/B-2).

In the disclaimer for the ESTA it says: "you may not apply for: 1) a change of nonimmigrant status, 2) an extension of stay, or 3) adjustment of status to temporary or permanent resident, unless eligible under section 245(c)(4) of the Immigration and Nationality Act."

This confuses me a bit.

This applies during your visit under the VWP. None of these things is a visa application, however.

1. an application for a change of nonimmigrant status is an application to do so without leaving the country. You can change directly from B-2 to J-1 status without leaving the country, for example, but you cannot change directly into J-1 status from the VWP. If you are admitted under the VWP, you will have to leave the US, obtain a J-1 visa if you don't already have one, and then travel to the US and apply for admission.

2. an application for extension of stay is similar, in that it means applying to remain in the US beyond the period of admission that was most recently granted, but without changing into a new status. This isn't allowed for VWP visitors, but it is allowed for most other nonimmigrant statuses. Since you want to visit for one month, and VWP admissions are for 90 days, this isn't likely to affect you.

3. application for adjustment of status refers to changing from a nonimmigrant status to an immigrant status -- that is, applying for a green card. You can't do this while you're present under the VWP unless you're an immediate relative of a US citizen (the exception provided under the cited section of the INA). Since you're planning to leave after a month and then return as a J-1 nonimmigrant, this doesn't apply to you either.