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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105595
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I have a question
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello! My name is***** and I am a licensed attorney with more than 13 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

What would you like to know?

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

Why do you believe you will have time out of status? If your extension was approved, you would just need to file an H-1B transfer to work for someone else.

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

I do not know why you are not responding, but you are not charged per question, per response, nor per answer. So after I give you my answer, you can continue to ask me questions without additional charge until you are satisfied. I apologize if it is a site issue that you posted and the post did not go through.

Let's go one by one:

1. Given my current circumstances, and as a Korean National, I have applied for Electronic System for Travel Authorization (ESTA) earlier this morning, in case I receive guidance that this is the best option to minimize my out-of-status duration. If this is deem the best option, I will fly to Canada on Friday and return back to New York on Saturday. Also, is this option a feasible one?

If you filed an H-1B transfer to a new employer, you would not be out of status. You are allowed to go to work for the new employer as soon as USCIS receives the H-1B petition and you do not need the approval notice of your extension from your current employer to file an H-1B transfer. Also, an ESTA is not a good idea because you CANNOT change status from ESTA to anything else. If you were in the U.S. on ESTA, you would have to leave to get H-1B visa stamping to then come back to the U.S.

2. I am terminated as of November 10th, 2015. However, I have my paystub for the period of November 15th. I read online that there a chance of the immigration officer exercising discretion and likelihood of understanding the transition period if the out-of-status period is short. Will the USCIS consider November 10th as my last day of H1-B with the firm or November 15th? 5 days to me right now could me the world at this point in time.

If you were terminated yesterday, then you would have to leave the U.S. and go for H-1B visa stamping outside of the U.S. You have the new employer file a new H-1B for you and you would ask them to do Premium Processing. That way you can get a decision within 15 business days and can come back rather quickly. The U.S. considers you to be out of status when you come off payroll from your current employer. There is no longer a grace period.

3. I read online that transferring to B2 visa possibility. As I am established here, it is a little unreasonable (despite it being the law) for me to depart the country on the day of termination. What is the process timing and success rate for a B2 visa and your thoughts on this transfer if it is a viable option. This might be best, ***** ***** will not have to leave the country. As I push hard on getting the job offer and to start the new H1-B petition with the new employer, I want to make sure that when the petition goes in, everything runs smoothly. I want to do what is best given my situation that I have laid out to minimize any risk of denial of the H1-B and also to minimize my unlawful stay here in the U.S. as it can cause problems later down the line. I look forward to hearing from you. I wish to have a call with you to receive detailed consultation on this matter as soon as possible.

Once you are out of status, even one day (as you already are), you cannot get into any other status inside of the U.S. like B-2. They don't give you an automatic penalty until 180 days have passed since you fell out of status and began accruing unlawful presence. But of course, you should not stay 179 days. The faster you leave, the better chance you have of proving to a visa officer that your overstay was brief, reasonable and won't happen again. That way you can get visa stamping to come back to the U.S.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.

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!

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