I am a French citizen, and have been on a J1 visa in the USA for a year-and-a-half, and will become a "resident alien" the 2nd of July 2017.

I will switch to a H1B visa soon, and need to fill a DS160 form. There is a question that I can't answer.

Are you applying in the same country of location where the visa was issued, and is this country or location your place of principal of residence?

My visa was issued in France, and I will be applying in the same country, but I think my principal place of residence is the USA (that's where I actually live).

=> What should I answer? What is my actual principal residence?

  • In what sense will you become a resident alien in July (that is, in what sense are you not already a resident alien, since you are an alien, and you reside in the US)? Also, if you're changing status while in the US, you shouldn't be using DS-160. In that case you should use I-539. – phoog May 13 '17 at 19:19
  • I was told I would become a resident alien in July, I guess because I would then meet the Substantial Presence Test. I already filled a I-539, but need (I believe) a DS-160 to obtain an interview at the US embassy in Paris (France), to get the actual physical stamp in my passport. – Clément May 13 '17 at 19:23
  • Residence for tax purposes (the concern of the substantial presence test) does not have much of a bearing on immigration status, though some immigration statuses do have a bearing on the substantial presence test. In fact, since you seem to be an exempt individual, you would not in fact satisfy the SPT until sometime after you switch to H-1B. In fact, July 2 through Dec 31 is exactly 183 days, so you might want to determine for certain whether you are exempt on that day or not. – phoog May 13 '17 at 19:31
  • You are correct that you need a DS-160 to get an H-1B sticker in your passport, but you do not need an H-1B sticker in your passport unless you want to enter the US. You may therefore prefer to file your DS-160 at a later time when you plan to travel for other reasons. For example, if you would prefer to go to France in December, or even in 2018 or later, you can do it then. You can also get your H-1B from an embassy or consulate in whatever other country you next travel to. I would therefore guess that you should say that your principle residence is in the US, but I don't know for sure. – phoog May 13 '17 at 19:34
  • Thanks. I'd rather have my sticker in my passport asap, to be able to travel freely and without the worry of having to do that kind of procedure while on travel for other reasons. Thanks for clarifying the distinction between resident and fiscal resident, that was really useful. My gut feeling is also to declare that the US is my principle residence, but I'm not 100% sure. I'll wait to see if someone else is willing to share his/her opinion. Thanks again! – Clément May 13 '17 at 19:44

At the time, I asked my University, and they answered:

My instinct is to answer yes …. The U.S. considers the J visa as a non-immigrant visa and the H-1B as a dual intent immigrant visa. Thus, they don't consider you residents.

So we answered "Yes", considering that our principal place of residency is France (even if that is not where we were living, we were not considered as US residents).

We did not have any trouble with that answer, so I'm assuming that it was right.

  • 1
    Yeah. I guess that's what it should be. Unless you are Permanent Resident, US is not the Principal Place of Residence. I have had talks with few attorneys and they were confused too. – Baktaawar Jan 13 '20 at 19:34
  • 2
    Both J1 and H1b are nonimmigrant visas. An "immigrant visa" makes you a permanent resident (green card holder) immediately upon entry. Any other visa is a nonimmigrant visa, even if the visa might allow you to immigrate later. Even K1 is a nonimmigrant visa. – user102008 Sep 30 '20 at 19:04

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