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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94395
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I need a lawyer whose expertise is in immigration law.


I have been in US for > 10 yrs. I first held F1 for 9yrs, then H1b for 2 yrs, now am holding H4. I just got a job offer and will change my visa from H4 to J1. However, my husband's company will stop sponsoring his H1 in mid Jul. And my future employer will need at least 45 days to submit my visa petition. Below are my questions:


1) Do I have to go back to my home country for my J1 visa? Can I stay in US while waiting for the petition to be submitted and approved?


2) How long does it take for USCIS to process the petition sent from my husband's company? During that period of time, can we stay in US? Is it called "grace period"? How long is the "grace period" generally?


3) Can I apply for my J1 and my husband's J2 at the same time? My husband currently has a criminal case pending in US. Will that affect his visa petition? If we file the visa changing request together, will that affect my visa application?


4) Based on your experience, is it particularly time consuming for USCIS to process/approve a H4 to J1 transition? How long does it take for them to process it generally?


5) Is J1 holder exempt for federal tax? For how long? If I am already a resident alien, can I still be exempt for federal tax?

Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. Thank you for using our service. All I ask is that before you sign off, you rate me positively. If you are inclined to use the "poor service" or "bad service" options, please ask follow-up questions first and give me a chance. Sometimes the law doesn't have a good solution, but I will try hard to find it if it is available.

1) Do I have to go back to my home country for my J1 visa? Can I stay in US while waiting for the petition to be submitted and approved?


You can stay in the U.S. while processing as long as there is no gap in-between.

2) How long does it take for USCIS to process the petition sent from my husband's company? During that period of time, can we stay in US? Is it called "grace period"? How long is the "grace period" generally?



Depending on the category and your citizenship, it can take a number of years. But if a visa is available, then it should be around 5 to 7 months. There is no longer a "grace period" nor any period for someone in an H-4. Students maybe, but H-4s no.


3) Can I apply for my J1 and my husband's J2 at the same time? My husband currently has a criminal case pending in US. Will that affect his visa petition? If we file the visa changing request together, will that affect my visa application?



Yes, BUT he would not be approved normally until he closes the criminal case. So there is at the very least, that problem.

4) Based on your experience, is it particularly time consuming for USCIS to process/approve a H4 to J1 transition? How long does it take for them to process it generally?



No, it is not. I would say about 3 to 6 months at the max.

5) Is J1 holder exempt for federal tax? For how long? If I am already a resident alien, can I still be exempt for federal tax?

No. Once the J-1 has more than 180 days, it passes the sufficient connections test. So the IRS will want their taxes.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

Customer: replied 1 year ago.

Further questions:


1. When does my husband's H1b (and my H4) expire? We have a date on our original document, which is sometime in 2014. Now he will be laid off by IBM on Jul.12th, which means on Jul. 12th, IBM will send a notification to USCIS that they will not sponsor his H1b any longer. Is Jul. 12th the expiration date? Or it is the day when USCIS process the notification? How long does it take for USCIS to process the notification? Or we could stay in US until USCIS tells us to leave?


2. As long as another company sends another notification to USCIS that they are willing to continue sponsor his H1b BEFORE IBM sends their notification, my husband could stay legally in US. Am I correct?


3. How does the pending criminal case will affect my husband? If another company manages to sponsor his visa, will he still need to apply for H1b? Will his visa application be denied due to the pending case? What if the case is withdrawn but there is a record in the database?


Thanks.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
1) The date he is terminated is the date he can no longer work. So he needs to file an H-1B transfer before July 12th so that he can remain in status. He does not have to wait for approval to begin working for the new employer, but he has to wait at least until USCIS gets it. So always best to sent it with tracking.

2) Yes. It is an H-1B transfer petition (almost exactly like filing a new H-1B). This has to be done BEFORE you come off payroll.

3) It depends on what the criminal case is and if he is convicted or not.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!
Customer: replied 1 year ago.

Thanks. You have been very helpful.


He is charged for domestic assault. The case is still pending. If the case is pending, while he files his H1b transfer, what could happen to his H1b? Denied? If the case is withdrawn but there is still a record, what could happen to his H1b?


I have been in US for >10 yrs. I was on F1 for 8 yrs, then H1b for almost 2 yrs, currently holding H4. How likely is my J1 petition gonna be approved? I will not be concerned if I apply for an H1b. But as for J1, I don't know how to persuade the consulate that I don't have intention to immigrate into US. Any suggestions on that?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Please rate me positively after I answer these for you. I will continue to answer your questions even after you rate me positively.

If he is convicted of domestic assault, he will be deported from the U.S. If he is not convicted but the case is still pending, they will hold off on approval of the H-1B for a time until the case is dismissed. Of course, if it is not dismissed, they will deny the H-1B and place him in Removal Proceedings.


For the J-1, you would have to show that you own property in your country not easily sold, that you have a job waiting for you there, that you have close or immediate family waiting for you there, etc. The more ties you show to your country, the better chances you have. Sorry, I know it isn't an easy thing, but that is the law. The H-1B is a dual-intent visa, so you can have both the intent to stay and the intent to go. But the J-1 is not.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello. I'm just following up again. What else can I answer for you? Please let me know. Thank you!
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. I see that you have viewed my responses. Are you having technical difficulties that you cannot respond? Is there something more that I can answer for you?

Customer: replied 1 year ago.

Sorry for the delayed response. Here are my further questions.
According to my husband, it takes IBM to process his status. Although his payroll will stop on Jul 12th, his name will be still in the IBM system until the end of Jul. And the international office of IBM suggested him to depart US within 30 days after Jul 12th. What do you think about this? Do you think leaving by Aug. 1 1th, but not Jul 12th will affect his future visa application? How about the end of Jul?
Based on the information above, do you think I, as an H4 holder should leave on Jul 12th, the end of Jul or by Aug 1 1th so that I will not have trouble during my future visa application?
Someone suggested us to submit a B2 petition before our current status expires so that we could stay in US with legal status for 6 months or so. The reasons could be to sell our house, to sell our vehicle, etc. What do you think about the suggestion? I guess for future H1b petition, it shouldn't affect much. But how about my upcoming J1 visa application?


Thanks again so much for your input.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Unfortunately, what USCIS will want is proof that he was on payroll up until the time that he leaves. He is supposed to leave immediately upon coming off payroll. They will ask for paycheck stubs to prove it. If he does not leave on time, he begins accumulating time out of status. The longer he stays, the harder it will be to convince an officer in the future to grant him a visa. Once he reaches 180 days or being out of status, he activates the 3 year bar which means for 3 years he cannot come back to the U.S. Once he reaches 1 year of being out of status, the bar is 10 years that he cannot come back.

And yes, it would be possible to file an I-539 Change of Status to B-2 status BEFORE he comes off payroll and he can stay while that is pending. So that is not a bad solution.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

Customer: replied 1 year ago.

Thanks a lot.


 


I am more concerned about my next J1 petition.


If I leave by the end of Jul, does it affect my J1 petition? Is it better for me to leave on Jul 12th, or it is OK for me to leave by the end of Jul? How about before Aug 11th?


Additionally, can I also apply for B2? If I do so, does it affect my J1 petition?


 

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
And I responded to that. If there is a gap, the quicker you leave, the better it is for you. The longer you take to leave, the worse it is for you. It is OK for you to leave before you come off payroll. It is not ok for you to leave after. As to how bad it is for you, that depends on how much longer you take to leave up until 180 days or more.

And yes, you can apply for B-2 and then later for J-1 as long as there are no gaps.

Please do not forget to rate me positively. Since I am not paid a salary, it is the only way that I get paid. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. Thank you.
Customer: replied 1 year ago.
Don't you think my J1 petition following B2 petition could be denied as I intent to stay longer in US? Is it more likely that my J1 petition would be rejected due to that? From your point of view, is it better that I go back to china during the gap and apply for J1 there?
Sorry for being so wordy. I am too helpless here. And you are the only person who can provide me reliable info.
Thanks again.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
I have answered a great deal of questions for you and you have not rated me positively. This is very important and I will continue to answer your questions even after you rate me positively. So please trust me on that.

It is common that people use the B-2 as a "bridge" to cover them so that there is no gap. What is important is that you prove non-immigrant intent for the J visa. It is better to always try to process inside of the U.S. because outside it is harder.

Let me know if you have additional questions, but please rate me positively now. Thank you.
Customer: replied 1 year ago.
Sorry that I haven't rated positively. I thought once I rate you, you will not continue answering my questions as it says "rate to finish" but i am not finished yet. And I don't know where to find you. I'd that is not the case, let me know and I will rate positively right away. Thanks again for your time.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
No, it does not finish. You can continue to ask questions without additional charge even after you rate me as long as you come back to this same message thread. So you can rate me positively now and you can come back even years later (it has happened) and as long as you come back to this same thread, you are ok. Thank you!
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94395
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 1 year ago.

Hi, may I ask more questions?


I wonder if the prosecutor dismissed my husband's case WITH or WITHOUT prejudice (am I spelling this word correctly?), can my husband apply for a visa and re-enter the country with no trouble?


Thanks.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Of course you may ask. They are usually not denied with prejudice. Without prejudice means he can apply again.
Customer: replied 1 year ago.

Sorry to bother you again.


My husband got a job offer. They are working on his H1b now. As long as they submit a petition by the end of Jul, I think we can both stay in US legally. But then, on his application material, there says: have you been arrested in US? Have you been convicted of any crime? something like that. His case is still pending, not in a trial yet, but not settled yet either. Does he need to say "yes" for these questions.


You mentioned that his H1b petition will be pending until the case is done. Do I remember right?


Thanks again.


(BTW, should I rate you again? Can I do multiple times?)


Best,

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
He has to mark YES to being arrested, NO to being convicted. But they will want certified copies of the police report and court disposition. Until the case is closed, they most likely will not approve the H-1B.

As far as rating me again, if you did that, you would be charged again. I wouldn't mind, but it isn't necessary.
Customer: replied 1 year ago.

"Until the case is closed, they most likely will not approve the H-1B." But he could still work while the H1b is pending. Am I right? I think you mentioned that in your previous answers.


Thanks again.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
While the case is pending, he can work up to 240 days or so, if I am not mistaken. Then he either has to ask for an extension of the extension, or he has to leave the U.S.
Customer: replied 1 year ago.

Hi,


May I bother you again?


Remember that I am applying for a change of status from H4 to J1. I wonder if my J1 petition is denied, what will happen? I will have to leave the country and apply for the visa stamp somewhere else. Am I right?


 

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
If your H-4 is still valid, you would not have to leave the U.S.
Customer: replied 1 year ago.

I am going to divorce my husband soon after I am financially able. I know to do that, I first will have to become a resident in one state. I wonder if holding J1 visa will prohibit me from divorcing my husband in US. (We got married in China.)

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Even if you are illegal, you can still divorce your husband in the U.S.
Customer: replied 12 months ago.

Dear Mr. Senmartin:


There is an emergent situation that I need your help with.


My husband's H1b and my H4 both got approved by USCIS shortly after he got his job offer, although he has the criminal record of two dismissed charges of domestic assault. But his job offer was withdrawn by the company due to the two cases. He hasn't started his new job yet. I wonder generally when his new H1b will expire.


Meanwhile, I have two job offers. The first one is offering me J1. The second one is H1. I have already accepted the first offer. All the paperwork is taking place currently. And the J1 petition might be submitted in a couple weeks. However, I do prefer the second one and plan to give up the former. I expect the paperwork will start within one week. But H1b petition takes 2 and a half months to be submitted.


My question is that if I have got a job offer (say the one offering me H1b) but can't submit the H1b petition before my H4 expires, do I still have to leave the country? I guess yes, right?


Do you think I can submit the J1 petition then later H1b petition in order to legally stay in US? As I am kinda sure that I can submit the J1 petition before my H4 expires.
Then if that is the case, can I submit my husband's J2 petition together with my J1 petition? How likely he will get his J2? Can be as easy as he did for his H1b?


Thank you very much!


 


Yin


 

Expert:  Guillermo J. Senmartin, Esq. replied 12 months ago.
You would both most likely have to leave the U.S. in any case. There can not be even a one day gap in your status. If you are both currently on B status and you file for a change to J and it is approved and you begin work on that status, then yes, you can file change to H. If you file change to J then before approval you file change to H, the J still has to be approved and you have to hope it is approved before October 1 or the J will override the H. This is a mess and you will most likely have to leave the U.S. and petition from outside.
Customer: replied 12 months ago.
Forget about the J visa. How about I file a B2 to fill up the gap then file a change to H? Can B2 petition get approved in 2 months? How likely the H petition will be approved? Is it better that I leave the country now then file an H outside the states?
Regarding my husbands situation, do you think applying for a visa outside the country is a good idea? Considering about his criminal record.
Thanks a lot for your answer.
Expert:  Guillermo J. Senmartin, Esq. replied 12 months ago.
I think you are going to get into trouble. The more chances you give immigration to look into your status and look into your intent, the more chances you will have of being denied. You can try for B-2 but not only does it have to be approved to fill the gap, but it has to be approved before October 1, or you would have to file a new H-1B. If not, you will have to leave the U.S. A B-2 can be approved in 2 months, but it is rare.

And I think it is always better to apply inside than outside of the U.S.
Customer: replied 12 months ago.
I hear that H1b petition can be easily approved even out of the states, is that right? Under what circumstances, it will be rejected. What documents should I prepare in order to get the H1b visa?
Expert:  Guillermo J. Senmartin, Esq. replied 12 months ago.

Your questions are becoming of the type that require long and detailed explanations. I don't mind answering a few follow-up questions, but all within reason. The H-1Bs are not easily approved outside of the U.S. In fact, I would say they are a little harder to get from outside.

 

Here is a link to information on the H-1B:

 

 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=73566811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

 

 

As far as why it could be denied, basically from not meeting any of the requirements. If even one requirement is not met, then the whole thing fails.

Customer: replied 11 months ago.

Thanks again for your time.


As the company which revoked my husband's employment blocked his phone and email, my husband has no idea when our visas will expire.


I heard from another immigration lawyer that when the employment is revoked, it takes about 2 months for the company to process the revocation and inform the USCIS for the visa petition.


What do you think about this information? Is it true? Should I take the risk to stay in US for another 2 months assuming that my H4 is still valid? Will we at some point get a written notice from USCIS saying that we are supposed to leave the country? Can we leave after we receive that letter?


Sorry for the mess. I didn't expect to ask you so many questions.


Thank you very much for your help.


 

Expert:  Guillermo J. Senmartin, Esq. replied 11 months ago.
I'll answer this last one for you. What matters is that your husband has no more paychecks to cover him. So if he tries to change status, they will ask for the paycheck stubs to prove that he was still in status when he filed the change of status. Since he would not be able to produce those paycheck stubs, any change of status would be denied. Sorry for the bad news.

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