Adjustment of Status Based on Marriage to a U.S. Citizen and Effect of Failure to Depart the U.S. After Grant of Voluntary Departure Order

Question: I am from Jamaica and entered the U.S. in 2001 on a visitors visa and have never left since then.  In 2003, I was in Immigration Court proceedings and the Immigration Judge granted me Voluntary Departure.  I was supposed to leave in early 2004, but I stayed in the United States.  In 2007, I married my husband, who was a green card holder at that time.  Earlier this year, my husband was approved for naturalization and he is now a U.S. citizen.  Can he file paperwork for me now so I can get my green card?  Do I have to leave the country to apply? 

SRW Border Lawyers Answer:   Hello, Thank you for submitting your question. 

While I cannot thoroughly analyze your case and give you specific advice without learning more about your case, I can give you some brief advice to address your concerns.  If you would like a detailed professional analysis of your case, as well as an opportunity to have us thoroughly explain your options and the processes to you, please contact our office for a consultation. 

Since your husband is now a U.S. citizen, he may be able to file a family-based immigrant petition on your behalf (I-130) to accord you status as an “Immediate Relative”, which means you are not subject to any priority date backlogs and can immediately pursue your green card. 

The good news is that since you last entered the U.S. lawfully (i.e. in 2001 on a visitors (B-2) visa), you may be eligible to adjust your status (I-485) from within the United States under INA §245 to that of lawful permanent resident (aka green card holder).  Normally, one of the main eligibility requirements to adjusting status from within the U.S. is that you have maintained lawful status (which you have not from what you have indicated).  However, this requirement is waived for ‘immediate relatives’ of U.S. citizens.  

For more information regarding adjusting your status based on marriage to a U.S. citizen, please visit: http://srwlawyers.com/adjustment-of-status-marriage-to-u-s-citizen/

However, your case does have a particularly twist arising from the fact that you failed to depart the U.S. after being issued a Voluntary Departure order.  When you did not leave the U.S. in 2004 per your Voluntary Departure order, your Voluntary Departure order converted to a removal order.  As a result, you are ineligible to adjust your status without first obtaining consent to reapply for admission.  In order to apply for this consent, you would need to submit Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  For a detailed discussion of how this application is adjudicated, please visit: http://www.srwborderlawyers.com/-form-i-212-waiver/.

Ideally, you will have all the paperwork available from your Immigration Court proceedings for an attorney to review to ensure that you do in fact require this waiver.  If not, you may need to file a Freedom of Information Act Request to obtain a copy of your file and the relevant court records.

To summarize, given the complexity of your case, I would highly advise you to minimally consult with an experienced immigration attorney before filing any paperwork with USCIS. 

Good luck!