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Should I respond to the RFE for the B2 (I-539) or withdraw application, leave the country and re-enter as a visitor (Canadian)?

San Francisco, CA |

I am a Canadian citizen and lost my job (H-1B) , and applied for the B2 visa 16 days (in July) after my status was revoked. I received a RFE from the USCIS this past week stating that since I filed for the I-539 sixteen days after my status was revoked; I was in violation of my nonimmigrant status at the time of the filing of the application. The RFE states the USCIS may "exercise my discretion and excuse the untimely filing only" if I can can prove "the failure to file a timely application was due to extraordinary circumstances beyond" my control or I can prove that I "had not otherwise violated my nonimmigrant status." What are my best options at this point? If I withdraw the I-539 and leave the country, how soon can I re-enter the country? I need to respond to the RFE by Nov 23rd.

Attorney Answers 3


  1. Neither. Meet with a counsel tomorrow in person BEFORE YOU LEAVE THE US>

    DISCLAIMER The answer given above by the lawyer serves for educational purposes only and provides general information and a basic understanding of the applicable law. Take notice that the answer above does not create an attorney-client relationship as this website is not intended to provide anyone a specific legal advice. Anyone using the site expressly consents that there is no attorney client privilege between any person and any attorney responding. Further take notice that the site should not be used as a crude substitute for any professional and competent legal advice by a licensed professional attorney in the applicable jurisdiction. The attorney above attempted to provide competent professional opinion, however, the law and its applications may change frequently and vary greatly from other U.S. jurisdictions and locales. Therefore, any information and opinions stated above are general in nature, and may not apply to specific factual or legal circumstances related to one's current legal issues. Contact an experienced lawyer admitted to practice in your State under an attorney-client privilege to further receive a comprehensive legal before making an educated decision about your particular legal issue. Respectfully, Attorney Alexander Ivakhnenko, Chicago, Illinois 773-562-8602


  2. There is no guarantee you will be readmitted on a B2. And if you stay and are denied a change of status, you may be subject to a 3 or 10 year bar to returning. It's a tough choice, and it may depend on the purposes of your admission as a B2.

    The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.


  3. Should you? That depends on the purpose you seek and intentions you harbor.

    The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter,not should it be viewed as establishing an attorney client relationship of any kind.

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