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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105166
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I was on the J1 VISA and on August, 2015 I applied for a

Customer Question

I was on the J1 VISA and on August, 2015 I applied for a Student VISA (F1). On February 11, 2016, they denied my Form I-539, Application to Extend or Change Nonimmigrant Status because the school cancelled my SEVIS record by mistake. I had the opportunity to do a motion on FORM I-290B which was also denied saying that the letter that the school wrote it was not a new fact. I have some questions, for example:
Do I have any other option? Maybe an appeal?
Should I leave the country? How many days do I have?
Submitted: 2 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Hello! My name is***** and I am a licensed attorney with more than 14 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.

Which box did you mark on the I-290B, to reopen, reconsider or appeal? Also, is your J-1 subject to 212(e)?

Customer: replied 2 months ago.
To reopen the case. I do not know if the J1 was subject to 212(e) . What do you mean? I was on the J1 as an Au pair
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Au Pairs usually don't have the 212(e) restriction, but you can look in your passport where your J-1 visa stamp is at, or your DS-2019 if you have it.

Customer: replied 2 months ago.
It says only J1/ DS. What difference does it make in the fact that I got my VISA denied?
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Because you are asking me your options and if you are subject to 212(e), marrying a U.S. Citizen would not be an option. The big problem I see here is that you have been accruing unlawful presence since February 11th and that's more than 180 days. You are also passed the 30 days for appeal period. When did your J-1 period actually end? When did your grace period end?

Expert:  Guillermo J. Senmartin, Esq. replied 2 months 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.

Are you subject to 212(e)?

Customer: replied 2 months ago.
Sorry I wasn't able to answer. I got my VISA denied on February but I had the option to do the motion. That is the reason why I did not leave the US. How am I suppose to wait for the motion if I had to leave? I did not have the choice to appeal so what 30 days do you mean? My J1 expired on August, 2015 before I applied for my F1. The only fact that I am still here is because I was waiting for the Immigration's decision. Do you think I still have any other option or
I have to leave right away?
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Unfortunately, you have accrued more than 180 days of unlawful presence since February 11th. One of the drawbacks of an I-290B is that if you lose, your unlawful presence does not count from the date that you lose the I-290B. It counts from the date of original denial. At this point, if you leave, you have a 3 year bar to coming back. You would need a waiver to come back to the U.S. If you decide to stay, your options are the following:

1) Wait for the immigration reform that comes out. If it is approved the way that they are intending, then you may be able to get Residency if you entered the U.S. early enough.

2) Apply for Asylum (you had to have done this within the 1st year of being in the U.S. unless there is a credible excuse or changed country conditions), Withholding of Removal, Convention Against Torture, or Cancellation of Removal. The first three things are if you fear to return to your home country because you believe that you will be specifically targeted due to your race, religion, nationality, social group or political opinion and that you run a high risk of great bodily injury, torture, or death as a result. The last, Cancellation, you would have to prove that you have been at least 10 years in the U.S. AND you must also prove that if you are deported, a U.S. Citizen or Lawful Permanent Resident that depends upon you will suffer exceptional and extremely unusual hardship. This hardship must be something more than emotional separation hardship or financial hardship, so it is difficult to get.

3) If you marry a U.S. Citizen (for love, of course), you could file for Residency without having to leave the U.S. and the same if you had a U.S. Citizen son or daughter over 21 that petitioned for you.

If you decide to leave now, before reaching 1 year of unlawful presence (February 11, 2017), to come back within 3 years (you have a 3 year bar) you would need a visa and a 212(d)(3) waiver which can either be done by the immigration officer at the interview or after just on their computer (take a look at this link):,D,3&url=/FAM/09FAM/09FAM030503.html#M305_3_3_A

or on form I-192 which can be found at You can find more information here:,0930-labrie.shtm

If you leave after February 11, 2017, it is a 10 year bar. I am truly sorry. I wish I had better news for you.

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! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, please click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Hello Caroline. 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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