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Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 124265
Experience:  Principal Attorney at Guillermo J. Senmartin, P.A.
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Overstaying visa waiver, then adjusting status to H1B

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overstaying visa waiver, then adjusting status to H1B
JA: What steps have been taken? Has any paperwork been filed with the U.S. government?
Customer: no
JA: Have you talked to a lawyer about the H-1B visa?
Customer: no
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

Hello! My name is Guillermo Senmartin and I am a licensed attorney with more than 17 years of experience. I am here to assist you with your questions. If I disappear for a few minutes, I have not gone away and I promise I will be back as soon as I can. You see I don't work in a call center, I work in my own legal practice. I'm a real, live lawyer and I assist multiple customers at the same time and something can come up that I need to attend to urgently. I am not ignoring you. Also, please do NOT click on the Opt Out button because if you do, it would prevent me from communicating with you and then it could take a long time before another expert responds to you. I understand you might get a prompt asking if you want to work with another expert, but just ignore it. 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. Thank you for your understanding.


Sorry for the delay. I just ask that if the answer is not good news that you not shoot the messenger. Shooting the messenger is either leaving a negative rating (usually reserved for rude or unprofessional experts) or not leaving a positive rating at all.


Unfortunately, two problems. Number one, you cannot change status or extend status or adjust status when on a ESTA Visa Waiver, the exceptions being adjustment through a marriage to a U.S. Citizen or a U.S. Citizen son or daughter over 21 or if you are single and under 21, through a U.S. Citizen parent, or if you were to win Asylum or similar protection. So even if you did not overstay, you still could not change status to H-1B from inside of the U.S. Number two, even if you had a B-2 tourist visa that would allow you to adjust status, any overstay of even one day prevents change of status through employment, investment or study. So either way, you have to leave and apply from outside. I am truly sorry. I wish I had better news. What else may I answer for you?

Customer: replied 1 month ago.
If I overstay for less than 180 days, and would get a job offer for sponsorship, in theory I could fly to mo home country for the end process and then come back?
Customer: replied 1 month ago.
I read, that if you apply for Green Card, you could stay in the country while the application is being processed. Am I totally wrong?

In theory, yes because you would not have a 3 year or 10 year bar, but two issues again. Number one, you would never be able to use an ESTA ever again even with a 1 day overstay. Number two, you would still have to convince the visa officer that your overstay was brief, reasonable and would not happen again. If you are not able to convince them, then they will not issue you the visa because you violated the ESTA and they think you may violate a future visa as well. So perhaps if you overstayed a few weeks, you could do it, but I doubt it if you overstayed a few months.


And about your green card question, you are wrong if you apply while you are out of status, or while on an ESTA UNLESS you are married to a U.S. Citizen, have a U.S. Citizen over 21, or you are under 21 and single and have a U.S. Citizen parent.


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 appreciate it. 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, you may have to scroll up to the top (or the bottom) of the page or 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. IF you still do not see the stars, at least leave me a message that says that you are satisfied with my service to you, something like, "THANK YOU!" should suffice. Thank you for your understanding.


Customer: replied 1 month ago.
Okay, thank you! One more question: I have entered the Green Card lottery, so if a miracle would happen and I won it, could I accept it while I would be here in the US or would they decline it?

This time, three issues. Number one, you have to win it while you are still in legal status. Number two, if you win it while on an ESTA, you must still go home. I already explained the few ways you can adjust status from an ESTA and the DV lottery is not it. And finally, even if you were on let's say a B-2, you won while you were in status, a visa has to become available for that entry and that can take a few months. If that visa is not available before your stay expires, you won't be able to file the I-485 and that would be the only thing that would keep you in status. It seems you really just don't want to go home, but unfortunately, you will have to go home to come back. The ESTA is easy to get, but it is one of the worst to have because of the restrictions. You can always look for an H-1B job from home. Here are some links:


Let me know if you need anything else, but please do not forget that positive rating, or at least leave me a "Thank you" note. Thank you for your understanding!

Guillermo Senmartin and other Immigration Law Specialists are ready to help you
Customer: replied 1 month ago.
You're right, I really don't want to go home... I have my son and my mother here too, I've risked so much to come here... But thank you for all this information, I truly appreciate it.

You are very welcome. Thank you for the positive rating. If you would like to request me in the future for a different topic, please remember to put FOR GUILLERMO in the subject line and message box. Good luck to you!

Customer: replied 1 month ago.
Hi Guillermo, I have one more question for you on this same matter. Surprisingly, yesterday I got 2 employers reach out to me (interviews today), who would be willing to sponsor my visa if I'm selected after the interview. I need to know, that IF they would offer me a contract and a sponsorship now (my visa waiver expires on Sunday December 8th), could I then stay in the country while the H1B is being processed and I have an employer?? Or do I still need to exit the country and then come back? Thank you so, so much for your response in advance! I know this is something the employers will ask so I need to be able to tell them the truth. Kindly, Mirella

My friend, I have repeated this a number of times. You CANNOT change status from an ESTA. Sorry, but even if you got the job offer, you will be going home and in most cases for an H-1B, you won't be able to come back using an H-1B visa until no earlier than 10 days before October 1, 2020.

Customer: replied 1 month ago.
Ok, I understand. We are leaving the country in any case this Saturday, I just wanted to be sure.

No problem.

Customer: replied 1 month ago.
Hello Guillermo, I'm sorry to yet again bother you. As you can see, I'm very desperate. I have my family and pets here and I'm trying to figure out the easiest way for us to safely cross the border in order to continue our stay here, we don't want to go back to cold, dark Finland... I made plans to go to Mexico. But of course, I found out too late that going to Mexico under VWP is only contributing to the visa... My question for you is, if we were to fly from the US say, for example Panama, and stay there for a couple days, and then fly directly to Tijuana (so not coming back to the US). Could we then come across the border to Los Angeles to pick up our car and pets? I raid, that EU citizen could stay in Mexico for 180 days, and that's what we're looking for. I'm doing remote work to my Finnish employer, and of course like said before, keep looking for sponsorship so someday I could come back to the US legally.
But my main concern is now to keep my family together, and that includes our pets. We wouldn't want to go back to Finland :(

Yes, that can work, but you would have to be prepared to explain the following at the Port of Entry:


1) Why are you coming back so soon?

2) Why couldn't you do what you needed to do during your last trip?

3) How will you be supporting yourself for this additional time since you are not allowed to work?

4) What STRONG ties do you have to your home country to ensure that you will go back?

5) What preparations have you made to go back?


If you can satisfy the CBP Officer, then will let you in for 90 more days. If not, then one of three things can happen:


a) They will allow you to withdraw your request to enter the U.S. and you can go home, no penalty.

b) They will not allow you to withdraw your request to enter the U.S. and will order you excluded. This has a 5 year penalty that you cannot come back unless you get a very hard to get waiver.

c) They will not allow you to withdraw your request to enter the U.S. and they catch you in a lie and they exclude you with a permanent bar due to fraud and/or misrepresentation and with that charge you cannot come back unless you get a very hard to get waiver.



Customer: replied 1 month ago.
Hi Guillermo, and thank you for your excellent service and help! My final question is (and I understand if you can't answer it because it's about Mexican immigration law but I have to ask), we got an update from an immigration office in Ensenada, that we could drive across the border and straight to an immigration office to issue a tourist visa in Mexico for 180 days. This is exactly what I had prayed for (wouldn't have to drive back to US to get our pets & car), but naturally I'm scared and concerned for my family. I just wanted to check whether you know if this could be possible, under the circumstances we're in (VWP etc).
Thank you so, so much for all your help, and I'll definitely rate this as EXCELLENT!!! Kindly, Mirella

I can't tell you anything about Mexican immigration law, all I can tell you is that you are going to have problems, most likely, getting back into the U.S. on an ESTA or B-2 since you are coming back so soon.

Customer: replied 1 month ago.
Ok, thank you Guillermo!

My pleasure.