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Ask Guillermo J. Senmartin, Esq. Your Own...
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 109007
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I m a j1 out of status visa been in US since 2002. What are

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I m a j1 out of status visa been in US since 2002. What are my options to get legal with nowadays law and situation? I m paying mortgage and work at restaurant, file my w2 diligently. Thank you verymuch.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one.

Well, first let me ask you a few questions:

1) Is your J-1 subject to 212(e), the two year home residency requirement?

2) Did you have an I-130, I-140 or Labor Certification filed for you on or before April 30, 2001?
Customer: replied 3 years ago.
Thank you mr senmartin. I appreciate so much. Mibe is subject to 212. However i think i can file waiver since i am marrying an h-1 visa holder living in USA and i paid my program that time on my own. And i got here june 2002, so i think i never filed the labor thing u mentioned above. I am in the middle of argument with one of my brother back in indonesia, some has to do with my mother's inheritance, and he showed me a watsap comversation screen beetween him and a screen name kimberly - us embassy, reporting my name and my whereabout. I am planning to marry my fiancee in november, she is in the middle of greencard process herself, sponsored by her office. Thank you for your responses.
Please check your J-1 stamp in your passport to make sure if it says "subject 212(e)" or "not subject to 212(e)"?

And what do you mean you paid your program time on your own? What does that mean? Do you mean you went back home for two years?

Customer: replied 3 years ago.
I meant i didnt use government or any agencies money that time. I heard this from a lawyer years back, and i was told i am subjected to 212-e.
You were told that you ARE subject to 212(e) or that you are NOT subject to 212(e)? Why don't you just look in your passport where the J-1 visa stamp is?
Customer: replied 3 years ago.
I m sorry, i dont have it with me now. I ll look for it in deposit box in the bank sometime this week. But i am pretty sure it says subjected to 212-e, its stamped in the box on my visa. I ll get back to you soon as possible? Thank you.

Then if you are subject to 212(e), your options are even less. I’ll give you your options now and they are not very good because not much has changed. They are:

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 be 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 through that spouse or also through a U.S. Citizen son or daughter over age 21, BUT, in order to get Residency through this process, you would have to ask for a waiver of 212(e) and those are very hard to get. You can look at this link for more information on that:

I am truly sorry, but your options are few at the moment and marrying an H-1B would not help you.

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 to you. 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 and make sure you type: FOR GUILLERMO on the subject line. Thank you!

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