The Department of Homeland Security will frequently find and arrest non-citizens who either have entered illegally or overstayed their visas and place them in proceedings. These persons are deportable unless they can provide proof that they are entitled to stay legally. In some instances, a person who falls into the following categories may be able to prove that he or she can remain in the United States:
Illegal Entry, i.e., entry without admission, enter without inspection, “EWI.”
In this instance, the person would need to demonstrate that a parent, sibling, or in some instances, a child, filed a petition prior to April 28, 2001, to qualify for amnesty. There are other ways to qualify for relief, e.g. Temporary Protected Status (“TPS”) or NACARA, but those will not be addressed here. Without a legal entry, a person will not be permitted to adjust status in the U.S., but will be required to leave the U.S. for consular processing.
In this instance, a person could qualify for relief if he or she is married to a U.S. citizen, so long as he or she entered the U.S. legally on any type of visa, with certain exceptions.
If neither of the above applies to you, then voluntary departure may be the best solution. It requires returning to one’s home country and applying for a visa from the U.S. consulate located there. Usually, a waiver of illegal presence will be required, and may be applied by those who can demonstrate “extreme hardship” to themselves and their families. In some instances, especially those from Mexico, these waivers can be in a matter of months, requiring little time to be spent away from one’s United State’s home.
In other instances, it may be recommended for a non-citizen to return to one’s home country – even without being placed in deportation proceedings – for the purpose of obtaining a waiver and gaining a legal permanent residency visa. At the same time, depending on the home country and its U.S. consulate, there is the risk that the waiver will not be granted or that it will take perhaps up to 18 months for a waiver to be granted, requiring the person to remain outside the United States for that period of time.