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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 96348
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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What happens if I stay in the US after my j1 expires

Customer Question

Hi!
I got an urgent questions and would appreciate any immediate help.
I''ve been in the us for a while now first studying on a F1 then getting some work training on a J1. My J1 expired April 9th, which means I will have to leave the US May 9th. This is my situation: I was gonna get married end of April, but that now is not happening anymore or might happen later (a year from now or so...my bf got cold feet). I just found out today and now I''m worried what would happen to me..... What would happen if I just stay past my legal time in the US for now. I''m really worried about one thing.....Would the gov. notice that I never exited (cause they got the SEVIS system now)? I was reading that if you stay illegal and then get married later, it is ok (you won''t be deported since you will be marrying a US citizen). Is that true? Also could I leave the US while I''m here illegal and re-enter at a later time again or would they then see that I overstayed and not let me back in? Any help? THANKS!
Submitted: 6 years ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 6 years ago.

Ok, let me see if I can clear some things up for you. As a J-1, you may be subject to the 2 year home residency requirement. This means that you must leave and be in your country for two years before you can come back to the U.S. You CANNOT marry a U.S. Citizen and adjust status in the U.S. until you have gone home for two years. Had you stayed on the F-1 and not switched to the J-1, then even if you had stayed illegal, you could get married to a U.S. Citizen and adjust status in the U.S. But because you switched to the J-1, IF you are subject to the requirement (which you probably are), then you have to go.

You are in a very bad position because IF you overstay, then you will not be able to get back in for 3 to 10 years unless you have a U.S. Citizen spouse and you are granted an I-601 waiver for any time you spend illegal. These waivers are VERY hard to get. So to clarify, if you stay longer than 6 months illegal but less than 1 year, you cannot come back in for 3 years. If you stay illegal over 1 year, you cannot come back in for 10 years. And because you are in a J-1 that may be subject to the 2 year home residency requirement, then you MUST leave because you won't be able to adjust status in the U.S.

So if I were you, I'd leave for the 2 years and then see if you can come back after that. You could look into applying for a J-1 waiver, but I don't think you have the time. That information could be found here:

http://travel.state.gov/visa/temp/info/info_1288.html

 

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 96348
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 5 other Immigration Law Specialists are ready to help you
Customer: replied 6 years ago.
Thanks for your reply!
I am not subject to the 2 year home residency requirement. Does that change things in any way?
So if I overstay less then 6 months and get married within the 6months I will have no problem adjusting my status? Only if I overstay 6 months or more I would have to go home even if I would marry a US citizen while in the US?
Thank you,
Anja
Expert:  Guillermo J. Senmartin, Esq. replied 6 years ago.
If you are absolutely sure that you are not subject to the two-year home residency requirement, then you can be an overstay as long as you want and marriage to a U.S. Citizen will fix that. So no, you would not have to go home if you overstayed more than 6 months or 1 year or 50 years.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 96348
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 5 other Immigration Law Specialists are ready to help you
Customer: replied 6 years ago.
Ok thanks you and yes I am absolutely sure that I'm not subject to the 2 year requirement.
So if I overstay I would face the risk of being deported, which could make things worst. If I never exit the US the SEvis system would register that and then would immigration not take steps to find me such as come to my house etc?
I don't think it would be good for me to overstay.
Another thing... If I leave under legal circumstances by the date I am supposed to could I come back in the same year and visit or could immigration be suspicious and not let me in considering my history? I am from Germany and I could stay up to 3 months in the US without a visa and another 3 on a visitor visa (making it 6months total).
I know these are a lot of questions, but I just want to be completely sure what my options are.

Thank you for your help Guillermo.
Anja
Expert:  Guillermo J. Senmartin, Esq. replied 6 years ago.

If you overstay, yes, you face a risk of deportation. If you overstay less than 6 months, there is not automatic bar for getting another visa and coming back in, but they will hold that against you when they use their discretion in deciding whether to grant you one or no, so it's best not to overstay. If you overstay longer than 6 months but less than 1 year, you activate the automatic 3 year bar to re-entry. If you overstay longer than 1 year, then you activate the 10 year bar.

If you leave legally, you should not have a problem coming back in as long as the immigration officer doen not believe that you are living in the U.S. (meaning that you are staying more time here than in Germany) and to help prove this, you should carry proof with you that you have a job in Germany, relatives, property, etc. etc.

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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq.
Attorney At Law
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10+ years of experience in various aspects of U.S. Immigration Law.