J1 visa to H2B concerns

[dmprime1 0]

Good day to everyone!

I hope someone can help us regarding our case here in the USA:

We were a J1 visa holder from May 2015 to May 15, 2016. (Our J1 visa is not subject to the 212 e rule) Before we finished our J1 grace period on May 15, an employer petitioned with I-129 us to change status from J1 for H2B seasonal worker. (Validity of this petition is until Oct 31 2016 only) Employer advised that they first submitted our papers / documents to USCIS this May 2 to prevent us from being out of status --- to make our status continuous. Employer advised though that USCIS returned our petition papers back to them twice because USCIS thought that it was lacking some documents to support our petition. But employer is certain that USCIS made an error and just didn't review the petition well enough because they submitted our petition papers to USCIS complete. So in the end, finally, after our employer re-submitted our petition again, USCIS issued a receipt number for our case just this June 28, under regular processing.

Our employer just recently changed our petition from regular to premium processing because we were all concerned that USCIS hasn't released any decision yet up until and this petition they filed for is expiring on Oct 31. On September 28, we got the receipt number for the premium processing, and on September 30, we received our RFE. We strongly believe that we cannot extend our visas because we don't have an i-94 with us yet.

Here are my Questions:

1. Is it advisable to leave USA before November? - since the petition is also expiring this Oct 31, 2016.

2. What was our status from the time that the agency filed our J1 visa to H2B visa that we can show to USCIS? since we only have our receipt number with us that our case is pending for a long time.

3. Based on our situation that I mentioned above, are we banned from coming back here in the USA?

4. I have potential employers who will hire us back for next summer 2017 and file an H2B petition to get us from our country (Philippines) - Can I still apply without getting any questions / problems with the consul or the embassy?

5. We worked with the agency for 5 months even if our visa is pending with USCIS. Will the embassy or consul will ask that if we re-apply for another H2B visa? Should we say YES or NO? Please advice us reasons to tell.

Thank you in advance!!

Edited October 18, 2016 by dmprime1

[Boiler 45,493]

Sounds like you have been out of status for 5 months and working illegally, 6 months and you have a 3 year ban.

Any future non immigrant visa sounds unlikely.

[dmprime1 0]

Sounds like you have been out of status for 5 months and working illegally, 6 months and you have a 3 year ban.

Any future non immigrant visa sounds unlikely.

Hello Boiler!

Thank you for your reply! I consulted a lawyer and advised if we really care about our status, we should leave soon. Does it mean that if ever I'm not subject to 3 year ban since I'm planning to leave the USA before reaching 6 months?

You said that future non immigrant visa sounds unlikely, you mean if I go beyond 6 months right?

What do you recommend if I reapply for a visa, should I tell to consul / embassy that I worked? Or should I just say I did not and I just waited for the petition?

Thank you!!

[Boiler 45,493]

They will know, they can see what happened and that you stayed beyond your authorised period, so not likely to give you a second chance. I can not say what will happen.

After 6 months then no chance, and never lie.

[dmprime1 0]

They will know, they can see what happened and that you stayed beyond your authorised period, so not likely to give you a second chance. I can not say what will happen.

After 6 months then no chance, and never lie.

Hello Boiler,

I understand that I go beyond my authorized period. But during those period, I have a pending petition - change of status filed in USCIS. Isn't it unfair if they wont give me a chance since things happened are out of my control and I believe they can see it in their system that someone filed a petition for me.

You mentioned to don't lie. If I tell it to the embassy / consul that my agency asked me to work - will they fire it against me?

will they issue me a visa if I tell the truth that I worked because agency asked me to and everything happened was out of my control that the petition is filed for and is taking a while.

[Merrytooth 5,748]

You should have left but you continue to work. The onus is on you to remain in legal status, not the agency.

The agency has nothing to lose but you will not get another non-immigrant visa in near future once you violate the terms.

[Boiler 45,493]

You can file for anything, but you had an application in but worked anyway without approval.

You can not pass the blame onto somebody else, I have no idea if a H2b would have been issued, it is temporary/seasonal visa, and you had been here a year. And of course it is usually oversubscribed.

That is water under the bridge.

[dmprime1 0]

You should have left but you continue to work. The onus is on you to remain in legal status, not the agency.

The agency has nothing to lose but you will not get another non-immigrant visa in near future once you violate the terms.

Hi Merrytooth!

I understand that part that I work with the agency, but how can I maintain a legal status if the petition is filed in a regular processing and it is taking a long time that is out of my control. Everything happened is not my intention. I dont have also an extension to be out of status. I have a petition filed with USCIS so thats the reason why I stayed.

Please help.

[Boiler 45,493]

Should have gone home and waited to see if you got a H2B. Agency should have filed it properly and in plenty of time.

[dmprime1 0]

Should have gone home and waited to see if you got a H2B. Agency should have filed it properly and in plenty of time.

Hi Boiler,

I'm planning to leave USA before the end of Oct. The lawyer that I consulted said that I'm currently out of status for 5 months and his suggestion is to go home instead of reaching 6 months so that I'm not blocked to enter. You're right that the agency didnt file it properly.

Do you think the embassy / consul in my country can see it in their system that someone filed a petition for me and it is taking a long time - so I decided to leave even if it is still not approved. Will it affect my application for another H2B visa since everything happened was not in my control?

If I lied in the embassy that I didnt work and just waited for the petiton, are there ways that they can find out right away in their system that I worked?

Please help.

[Californiansunset 336]

Hi Boiler,

I'm planning to leave USA before the end of Oct. The lawyer that I consulted said that I'm currently out of status for 5 months and his suggestion is to go home instead of reaching 6 months so that I'm not blocked to enter. You're right that the agency didnt file it properly.

Do you think the embassy / consul in my country can see it in their system that someone filed a petition for me and it is taking a long time - so I decided to leave even if it is still not approved. Will it affect my application for another H2B visa since everything happened was not in my control?

If I lied in the embassy that I didnt work and just waited for the petiton, are there ways that they can find out right away in their system that I worked?

Please help.

Don't lie to a CO. They will give you a misrep charge if you lie and that carries a lifetime ban. You have a 3 year ban now, you will just make everything worse by lying.

[Merrytooth 5,748]

Hi Boiler,

I'm planning to leave USA before the end of Oct. The lawyer that I consulted said that I'm currently out of status for 5 months and his suggestion is to go home instead of reaching 6 months so that I'm not blocked to enter. You're right that the agency didnt file it properly.

Do you think the embassy / consul in my country can see it in their system that someone filed a petition for me and it is taking a long time - so I decided to leave even if it is still not approved. Will it affect my application for another H2B visa since everything happened was not in my control?

If I lied in the embassy that I didnt work and just waited for the petiton, are there ways that they can find out right away in their system that I worked?

Please help.

I am sure when the agency filed the petition form, it contains your personal information like your FULL name, passport number (sorry, getting a new passport later on will not hide anything or create a new identity for you.), social security number (obtained on your J1 visa), SEVIS number.. etc.

And the US govt will know that you have worked during your stay (whoever employer paid taxes on your behalf, there is always paper/electronic trail), so don't think of lying / intentionally misrepresent yourself, digging a bigger deeper hole.

[dmprime1 0]

I am sure when the agency filed the petition form, it contains your personal information like your FULL name, passport number (sorry, getting a new passport later on will not hide anything or create a new identity for you.), social security number (obtained on your J1 visa), SEVIS number.. etc.

And the US govt will know that you have worked during your stay (whoever employer paid taxes on your behalf, there is always paper/electronic trail), so don't think of lying / intentionally misrepresent yourself, digging a bigger deeper hole.

Hi Merrytooth,

Thank you for your reply. Thank you for the advice!

Do you think if I tell the truth to the consul or the embassy that I was just asked by my employer / agency to work - will they still forgive me and can still issue a visa? ( since looks like it is part of human trafficking that is not my control since they filed the petition for us)

[Merrytooth 5,748]

Hi Merrytooth,

Thank you for your reply. Thank you for the advice!

Do you think if I tell the truth to the consul or the embassy that I was just asked by my employer / agency to work - will they still forgive me and can still issue a visa? ( since looks like it is part of human trafficking that is not my control since they filed the petition for us)

Human Trafficking??? Seriously?

Do the agency kept your passport and held you hostage, chained you up, refuse your freedom or something?

Nobody is forcing you to work against your will.

You can even go to the airport now and buy yourself a plane ticket to go home.

Take ownership for your own mistake, and move on.

[dmprime1 0]

Human Trafficking??? Seriously?

Do the agency kept your passport and held you hostage, chained you up, refuse your freedom or something?

Nobody is forcing you to work against your will.

You can even go to the airport now and buy yourself a plane ticket to go home.

Take ownership for your own mistake, and move on.

They did not kept our passport. I mean like isnt it like a form of trafficking since they didnt take a fast action regarding our visa? the season is almost over and it is still currently pending.

Will the consul or embassy will grant us another working visa if we applied next year if we tell the truth that we worked with an agency? Is telling the truth will forgive me since everything happened like my visa was pending for a long time and decided to leave US since waiting for the petition doesnt make sense anymore..

please help.