When does my presence in the United States starts to count as unlawful presence once the judge grants voluntary departure?

Posted by Harsharn Makkar

Once the judge issues the voluntary departure order, you have 90 days from the date of the order to depart the United States.  The time incurred between the voluntary departure date and the date you choose to depart does not count towards your unlawful presence.  It is advisable though to depart before that period runs out because if you do not leave within 90 days, you will accrue unlawful presence and that unlawful presence will bar you from returning to the United States in the future.

Please note if you want to remain in the United States because you are seeking review from the BIA of the removal order, voluntary departure period will not run while the BIA appeal is pending.  However, that is not the case if you appeal to the court of appeals.  As you know with anything else, these rules may change.  Thus, it is imperative to consult an immigration attorney before forming a decision.

Is there a way to avoid removal proceedings and what are the benefits of voluntary departure?

Posted by Harsharn Makkar

There are defenses to deportation or removal proceedings such as cancellation of removal or voluntary departure.  However, determining whether you qualify for one of these defenses depends on many factors. One of those factors is whether the non-immigrant (you) entered the country with or without inspection (inspection does not mean with or without a visa) or if you violated one of the terms. Another factor is whether a removal of non-immigrant would cause an extreme hardship to a United States citizen (USC) spouse or a child.

Because the first two factors are complicated to explain this post, we will only focus on the third factor, which to cancellation of removal based on extreme hardship to a USC.  To qualify for a defense based on an extreme hardship, a non-immigrant must be married to a United States citizen and/or have children(s) or parent(s) who are United States citizens.  Of course, there are various other factors that a non-immigrant must show in order to qualify for any of the defenses mentioned above, which an attorney must evaluate before forming an opinion whether you qualify for one of these defenses.

A point to remember is that even if a cancellation of removal is not available as a defense, a voluntary departure is a desirable alternative than deportation because it helps a non-immigrant preserve his/her right to return to the United States in the near future. However, not everyone qualifies for a voluntary departure. More importantly, overstaying the voluntary departure period could subject the non-immigrant to severe penalties.  Thus, it is imperative that a non-immigrant hire an attorney for deportation advice before his/her court date to determine a type of relief available.