J1 overstay (no 2 year rule), married, fly to Europe and back?

[redflower7 0]

I came here on a J1 in Feb 2012. Things went wrong and i had to leave the internship 1 day later. My lawyer back then said that I am not accruing illegal time and I am not under the 2 year rule as my white card says DS (duration of stay). But that i have to leave if they find out I am still here.

4 weeks ago i got married here in the US. My husband is a US citizen. He now had no choice but to leave for 3 weeks to Europe. We have not filed immigration papers yet but wanted to do this when he is back.

I miss him a lot and don’t want to be separate for 3 weeks. Can I follow him to Europe? Will they let me back in? Maybe on a tourist visa? Or is there a risk that they won’t let me in at all? I don’t want to jeopardize anything but want to see him.

[LindaC1990 23]

Don't leave. I am not 100% understand your situation, but for me, I wouldn't take the risk.

[Anh map 2,098]

3 weeks isn't worth the risk.

[newlyweds2010 208]

I came here on a J1 in Feb 2012. Things went wrong and i had to leave the internship 1 day later. My lawyer back then said that I am not accruing illegal time and I am not under the 2 year rule as my white card says DS (duration of stay). But that i have to leave if they find out I am still here.

4 weeks ago i got married here in the US. My husband is a US citizen. He now had no choice but to leave for 3 weeks to Europe. We have not filed immigration papers yet but wanted to do this when he is back.

I miss him a lot and don’t want to be separate for 3 weeks. Can I follow him to Europe? Will they let me back in? Maybe on a tourist visa? Or is there a risk that they won’t let me in at all? I don’t want to jeopardize anything but want to see him.

you can certainly follow him, but they will not let you back in, on a tourist visa or otherwise. you would have to apply for a spousal visa, which would take close to a year. Also, since you overstayed your visa by more than 6 months now, you'll face a 3-year ban (not sure why your lawyer told you otherwise, do you mind to share it?).

[Newbie608 103]

Please don't take the risk. He'll be back in 3 weeks. The fact that your married and have the intent to live in the US, they will deny you a visitor visa. You wont accrue any overstay time since you have the D/S stamp but you will be out of status. I would say start working on your AOS asap because you don't wanna risk getting picked up by immigration either...

Goodluck

[newlyweds2010 208]

Please don't take the risk. He'll be back in 3 weeks. The fact that your married and have the intent to live in the US, they will deny you a visitor visa. You wont accrue any overstay time since you have the D/S stamp but you will be out of status. I would say start working on your AOS asap because you don't wanna risk getting picked up by immigration either...

Goodluck

Not sure about that:

If you plan to withdraw from your program, you must notify your program sponsor. Your program sponsor will enter this information into SEVIS and you will be expected to depart the United States immediately. You will not be entitled to the post-completion 30-day period because you did not successfully complete your program. (from http://j1visa.state.gov/basics/common-questions/).

[redflower7 0]

@newlyweds2010: my lawyer said to me back then in February that i am no subject to the 2 year rule as my white card says DS (duration of stay). So as long as i have this card i am not accruing illegal time. (something like that). There is also that rule that you are not illegal unless an immigration judge declares you illegal and from then on you accrue illegal time and get a ban.

I think I heard of someone once who overstayed the J1, flew back to France, they didnt take his white card. He came back with that card and everything was fine.

So i thought i would at least get a tourist visa? Or if i show my marriage certificate to the immigration people at the airport would that help?

I miss him so much. We married out of love after we met at work. We married 4 weeks ago, after only 3 months dating, and now he had to leave which is really hard for me. But he had to go and couldnt wait. We havent filed yet and i was thinking of filing later when im back on a tourist visa. That is definitely not possible? Is that 100% sure?

[LindaC1990 23]

So your plan is: take the risk and leave the country, apply tourist visa to come back, apply for AOS after you back here?

That's called visa fraud.

[Anh map 2,098]

@newlyweds2010: my lawyer said to me back then in February that i am no subject to the 2 year rule as my white card says DS (duration of stay). So as long as i have this card i am not accruing illegal time. (something like that). There is also that rule that you are not illegal unless an immigration judge declares you illegal and from then on you accrue illegal time and get a ban.

I think I heard of someone once who overstayed the J1, flew back to France, they didnt take his white card. He came back with that card and everything was fine.

So i thought i would at least get a tourist visa? Or if i show my marriage certificate to the immigration people at the airport would that help?

I miss him so much. We married out of love after we met at work. We married 4 weeks ago, after only 3 months dating, and now he had to leave which is really hard for me. But he had to go and couldnt wait. We havent filed yet and i was thinking of filing later when im back on a tourist visa. That is definitely not possible? Is that 100% sure?

Unlikely that you would be issued a tourist visa as a spouse of a US citizen.

[ceadsearc 516]

2 year rule and overstay are two totally different things. D/S is duration of stay. If you violated your status by not being in the program then you weren't allowed to stay. Now I don't know whether or not you were actually accruing overstay that USCIS will use against you that entire time or if it is similar to some other situations where you'd need to go before an immigration judge. But you definitely overstayed your visa.

Either way, it's a HUGE risk. There is pretty much zero chance you will be allowed in on a tourist visa. Using your J-1 to try to get back in would likely be considered fraud since you aren't following the terms and you know it AND it is a non-immigrant visa. As is a tourist visa. You can't leave and come back on ANY visa besides a spousal visa even without overstay because you have immigrant intent. It is illegal. A marriage certificate at the airport makes zero difference.

So your plan 100% won't work. Is there a reason you can't stay in America until he returns and files then? Because that is your only option. That, or return to Europe, file the CR-1, hope you don't have a ban, and wait in Europe for 7-9 months until it is granted without visiting at all.

Also, if your lawyer told you months ago you could stay on your J-1 just because it said D/S, even though you were not participating in the program you were here to participate in, I suggest you find a new lawyer. That is not only bad advice but borders on fraudulent.

[Newbie608 103]

I agree with Linda, Anh map and ceadsearc

OP, if you want to leave the country right now knowing your situation, that's something you will have to decide on your own. You've receive good advice here so all the best in whatever you choose to do...

Edited September 20, 2012 by Newbie608

[Mithmeoi 29]

If it were me I'd stay put and tough it out. Once you get all your papers processed and have a greencard it won't be a problem. Til then you will either have to stay and wait a couple weeks for your husband or leave and face a ban or longer separation while you process the paperwork long distance. Not worth the risk for just three weeks in my opinion.

[newlyweds2010 208]

@newlyweds2010: my lawyer said to me back then in February that i am no subject to the 2 year rule as my white card says DS (duration of stay). So as long as i have this card i am not accruing illegal time. (something like that). There is also that rule that you are not illegal unless an immigration judge declares you illegal and from then on you accrue illegal time and get a ban.

I think I heard of someone once who overstayed the J1, flew back to France, they didnt take his white card. He came back with that card and everything was fine.

So i thought i would at least get a tourist visa? Or if i show my marriage certificate to the immigration people at the airport would that help?

I miss him so much. We married out of love after we met at work. We married 4 weeks ago, after only 3 months dating, and now he had to leave which is really hard for me. But he had to go and couldnt wait. We havent filed yet and i was thinking of filing later when im back on a tourist visa. That is definitely not possible? Is that 100% sure?

OK, it may well be that you are not accruing overstay. Regardless, visitor visas are for visitors. if you enter as a tourist with intent to adjust status, that is called visa fraud. No good. Also, when (not if, when) the immigration officer at the airport will ask you about the reason of your travel, and you tell him that you want to come back and be with your husband (remember, NEVER lie), you will find yourself on the first plane home. If you say that you are just visiting but then in fact you file AOS, not only you will have had intent, but you will have also materially misrepresented your situation to obtain an immigration benefit. Intent alone is not sufficient to deny AOS, but material misrepresentation is, and with very harsh consequences.

[AnotherLostSoul 167]

OP: duration of stay (D/S) and 2 year rule is two separate things. 2 year rule means that if that was applied to you (which you said it isn't) that means that in order to be able to change to another type of visa (B visa, F visa, H1B visa, or any other) you would have to go back to your home country, be there physically for two years and then you can apply for another type of visa whether non-immigrant or immigrant. Now, you are not subject to the two year which is good, you can change your visa any time. Duration of stay (or D/S) on the I-94 means that whichever program you were going to (from which you obtained your J1 visa) UNTIL you are in that program, you can stay in the United States. F1 students get this also noted on their I-94 as literally, what are the border patrol guys can do? Say you have to leave the country in 2 years? Or 3 years? What if you cannot finish your PhD in that time frame and the program/department/P.I. is happy to pay and sponsor you, but wants you to finish and earn your degree? Then what year should they write on the I-94 as a date someone must finish their work? Some PhD only takes 4 years, others take up to 7 years. So, they just write "D/S", meaning as long as these students are registered as full time, they can stay and are legal here. Same with your case on the J1. As long as you were in that program that petitioned your J1 visa, you can stay technically legally here. Now, you are not in that program anymore since February, so basically D/S does not apply to you since February. You've basically been "out of status" since February, or maybe March as you might have a 30 day "grace period" to leave the country. So, in other words, you are already a "black sheep" so if I were you I would not step outside the United States, unless you are fine with your husband petition for a K visa, or whatever applies for spouses abroad, and you'll start your whole immigration process from Europe through the consulate/embassy. Up to you. But you either go through that route from Europe and don't come back with him 3 weeks later when he is heading back here, or don't leave the country and file for AOS as soon as you can before immigration goes after you. You don't want them to go after you....things will be just harder then.

Good luck!

Ps: Your lawyer sucks....I hope you didn't pay him/her much...

[newlyweds2010 208]

OP: duration of stay (D/S) and 2 year rule is two separate things. 2 year rule means that if that was applied to you (which you said it isn't) that means that in order to be able to change to another type of visa (B visa, F visa, H1B visa, or any other) you would have to go back to your home country, be there physically for two years and then you can apply for another type of visa whether non-immigrant or immigrant. Now, you are not subject to the two year which is good, you can change your visa any time. Duration of stay (or D/S) on the I-94 means that whichever program you were going to (from which you obtained your J1 visa) UNTIL you are in that program, you can stay in the United States. F1 students get this also noted on their I-94 as literally, what are the border patrol guys can do? Say you have to leave the country in 2 years? Or 3 years? What if you cannot finish your PhD in that time frame and the program/department/P.I. is happy to pay and sponsor you, but wants you to finish and earn your degree? Then what year should they write on the I-94 as a date someone must finish their work? Some PhD only takes 4 years, others take up to 7 years. So, they just write "D/S", meaning as long as these students are registered as full time, they can stay and are legal here. Same with your case on the J1. As long as you were in that program that petitioned your J1 visa, you can stay technically legally here. Now, you are not in that program anymore since February, so basically D/S does not apply to you since February. You've basically been "out of status" since February, or maybe March as you might have a 30 day "grace period" to leave the country. So, in other words, you are already a "black sheep" so if I were you I would not step outside the United States, unless you are fine with your husband petition for a K visa, or whatever applies for spouses abroad, and you'll start your whole immigration process from Europe through the consulate/embassy. Up to you. But you either go through that route from Europe and don't come back with him 3 weeks later when he is heading back here, or don't leave the country and file for AOS as soon as you can before immigration goes after you. You don't want them to go after you....things will be just harder then.

Good luck!

Ps: Your lawyer sucks....I hope you didn't pay him/her much...

If you don't complete your program, you are also not entitled to the 30-day grace period generally granted to J1 holders. This means that she was out of status the moment her program ended some time in February. Whether she has also been accruing overstay since then, I don't know, but in any event your analysis is correct.

Edited September 20, 2012 by newlyweds2010