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

[Moomin 292]

If the lawyer told you that you can become illegal only when being told by an immigration judge, I'd be cautious and waive bye bye to that lawyer. Illegals are those entering the US without being inspected. If the lawyer got something as basic as that wrong, then you might want to reconsider what else he said to you.

I'm going to leave the rest to people who are more experienced however please keep your mind open to suggestions instead of leaning on the words of your lawyer.

[hmh33 117]

F and J Nonimmigrants admitted on D/S indeed do not accrue overstay (unlawful presence) towards a 3 or 10 yr ban until informed by an immgration judge that they are out of status.

That doesn't change the fact that the OP would be a fool to leave. She should get on Skype and suck up the 3 weeks, or make her husband split his trip into two shorter ones, or something like that. Don't leave the country without advance parole!

[GlobeHopperMama 95]

In this case, the information from your lawyer is the most accurate, thankfully. Not all immigration lawyers have a clue, and not all internet forum participants do, either, as this thread seems to be demonstrating. As multiple others have mentioned, when you are granted D/S entry, you do not begin accruing unlawful presence countable for a ban until an immigration judge or official declares you to be out of status. However, despite the fact that you don't have a ban or ban-incurring unlawful presence, you have multiple aggravating factors that would generally prevent you from gaining tourist or any non-immigrant entry to the US. Having violated the terms of the visa you most recently entered, having stayed beyond its authorized use (unlawful presence or not), having married a US citizen, having set up residence in the US - these are all things that make you an unlikely candidate for any kind of visa or status other than immigrant visa/permanent resident. And as the others stated, unless your intent in seeking a tourist visa is to return to living outside the US after your tourist entry, seeking one would amount to fraud and so would using it to re-enter the US and adjust status to permanent resident. Don't leave the US to avoid a 3-week separation. There are people in this forum who have successfully maintained marriages across borders or oceans to the tune of years. Three weeks may seem like an eternity, but it ends quickly and you find you're stronger for it in the end.

For some on this thread, I think an article like this one could be useful for learning about the differences between status, overstay, and unlawful presence:

http://www.visapro.com/immigration-articles/?a=1484&z=46

[ceadsearc 516]

Her lawyer was somewhat right. She may not accrue overstay, but that doesn't mean she was allowed to stay just because she has a card saying d/s as it seems her lawyer said. In this case, she doesn't have overstay in USCIS's eyes simply because she was not caught. She most definitely is not allowed to be here.

[redflower7 0]

Don't leave the US to avoid a 3-week separation. There are people in this forum who have successfully maintained marriages across borders or oceans to the tune of years. Three weeks may seem like an eternity, but it ends quickly and you find you're stronger for it in the end.

I am very concernced about this because we have only been together for a short time. Since June we are dating and getting to know each other. After only 10 weeks we got married. And now after 14 weeks already have a 3 week separation! I am not sure if this will damage or even destroy our marriage... We cannot really communicate as he stopped his iphone service and is in a village where he needs to use someone elses phone, so that means 5 mins talking every other day.

Maybe the other couple's already had a long time getting to know each other properly?

I never thought that i would feel so bad once he is gone and he only left on tuesday afternoon.

[Anh map 2,098]

I am very concernced about this because we have only been together for a short time. Since June we are dating and getting to know each other. After only 10 weeks we got married. And now after 14 weeks already have a 3 week separation! I am not sure if this will damage or even destroy our marriage... We cannot really communicate as he stopped his iphone service and is in a village where he needs to use someone elses phone, so that means 5 mins talking every other day.

Maybe the other couple's already had a long time getting to know each other properly?

I never thought that i would feel so bad once he is gone and he only left on tuesday afternoon.

Love-sickness is a survivable malady. If a 3 week period apart will destroy your marriage, then there are underlying weaknesses.

With an iPhone he ought to be able to communicate with you using a wireless internet connection as well and one of the many communication apps (skype, messenger, etc.).

[Little_My 464]

If you love him that much, after such a short courtship, that you cannot bear the thought of being away from him for three meager weeks, then think about possibly having to be away from him 9-11 months. That's how long it could take for you to get a CR-1 visa issued, if you leave the United States, cannot get back in, and have to apply for a spousal visa abroad. That should be motivation enough to not take the chance.

It seems like a no-brainer to me, quite frankly. I fully understand heart ache and the pain of being far from your love - I did partly long distance for three years. But three weeks, really, is nothing - and if that is enough to bring down your marriage, well, then maybe it wasn't the right time for you two to get married in the first place. I don't mean to sound harsh, but this whole situation seems very foolish to me - Of course you will not leave the US under these circumstances, because 1) leaving and attempting to return the way you have proposed would be visa fraud, which is illegal and could carry a life time ban to the US, and 2) You could get stuck outside the US and away from your love for almost a year. Seems pretty simple to me.

Regarding the 2-year home residency requirement - your I-94 (the "white card") has nothing to do with the HRR. You have to check your visa to see whether it applies or not. It should be written on the visa itself.

[redflower7 0]

The 2 year rule doesnt apply to me.

I understand now that i will not be able to come back on a tourist visa, i just think its so crazy that there would be no way back in. He said before he left that "nothing could happen" to me anymore even if they find out im still here because im married now to a citizen he said, and nobody could take us apart. Im fine now he said. So i guess we both though that i would be able to also come back in to be with my husband. That it is like a human legal right which i have... Im sure he thought it would be much simpler. Because of the pure fact that we are married and cannot be separated.

If he stopped his roaming services (receiving and making calls, and sms) would that still be possible for him to use the internet on the iphone? He stopped the service as he even has to pay when someone calls him and he is not picking up.

He only called me 10 mins today from his sisters house as he didnt want to block her phone for too long.

Edited September 20, 2012 by redflower7

[Sandra G. 5,048]

redflower7 your husband was dead wrong when he said that"nothing could happen to you anymore'.Until you file your papers and have your green card approved you are out of status.Do not leave the Country and as soon he gets here file out the forms and send to USCIS.

[Waiting_In_SC 28]

I am not sure if this will damage or even destroy our marriage...

If you are serious about this, I'm thinking that you have more concerns than just immigration rules. Three weeks is absolutely nothing in the whole scheme of things, especially when you're facing a lengthy separation if things go wrong.

[Newbie608 103]

The 2 year rule doesnt apply to me.

I understand now that i will not be able to come back on a tourist visa, i just think its so crazy that there would be no way back in. He said before he left that "nothing could happen" to me anymore even if they find out im still here because im married now to a citizen he said, and nobody could take us apart. Im fine now he said. So i guess we both though that i would be able to also come back in to be with my husband. That it is like a human legal right which i have... Im sure he thought it would be much simpler. Because of the pure fact that we are married and cannot be separated.

If he stopped his roaming services (receiving and making calls, and sms) would that still be possible for him to use the internet on the iphone? He stopped the service as he even has to pay when someone calls him and he is not picking up.

He only called me 10 mins today from his sisters house as he didnt want to block her phone for too long.

You are only safe when you file the AOS packet and its been received by USCIS. ICE can pick you up at anytime, whether you married to a United States citizen or not.

My husband thought I would be a citizen the minute we say I do but little did he know. We both learnt a lot throughout the process and he now understands how stressful the whole process is

I'm glad that you decided to stay and your hubby will be back before you know it. You can try skyping or facetime too...

Edited September 20, 2012 by Newbie608

[JohnR! 5,495]

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.

If you leave you will not be allowed back in without a CR/IR visa, which may take up to 12 months to complete.

IMHO, if you suspect your relationship can't survive a three-week separation, you need to reconsider your marriage altogether. I do not mean this in any other way than a simple observation. If both of you have vowed to stay together for the rest of your lives, three weeks are a walk in the park...

[bt1 42]

So i guess we both though that i would be able to also come back in to be with my husband. That it is like a human legal right which i have... Im sure he thought it would be much simpler. Because of the pure fact that we are married and cannot be separated.

I'm afraid you approached this issue rather naively: just by marrying and American, you do not automatically have all the "rights" in the world! Unfortunately, there are many married people who, for one reason or another, cannot be together due to immigration issues. So, until you file all the necessary paperwork and obtain legal, permanent residency, you will not be able to go anywhere freely and may have to be part from your husband at times. The majority of people on this site have been apart from their partners for extended periods of time, and we all survived...and so will you!

[JohnR! 5,495]

If he stopped his roaming services (receiving and making calls, and sms) would that still be possible for him to use the internet on the iphone?

Yes, because he can connect to any Wi-Fi network and use the internet based services - Skype, Facetime, etc - to communicate with you.

[ceadsearc 516]

It is neither a human right nor a legal right to be allowed in the US regardless of who you are married to. You are not American. Stay and wait for him to return and file your paperwork.