Re-Entry After Voluntary Departure

QUESTION:  I am really confused about my situation and I need professional guidance. I obtained a student visa in 2005 and entered the U.S. to complete my MBA Degree, which I did in 2006.  To maintain status, I continued my education.  However, I did not go back to school in January 2009 for financial reasons.  I also feared returning to my home country because of the terrorism.  In October 2009 I was arrested by DHS and taken to jail for 2 and a half weeks.  I was finally released on bond.  After a month I saw the Immigration Judge who gave me voluntary departure with 120 days to leave, which I did.  My lawyer told me that I did not trigger unlawful presence because my student visa was still valid.  Since my overstay was not more than one year I was told that I am not barred from returning to the U.S.  I have no criminal charges.   

Now I am in Pakistan and I want to return to the U.S.  If I get married to a U.S. citizen who is here in Pakistan, will I have any problems immigrating to the U.S.?  I called a U.S. immigration person here and he said it doesn’t matter if I got voluntary departure – I still have a 10-year bar. 

Please clarify my situation.  Is passage back to the U.S. still open or closed permanently?  

REPLY:  Based upon the information provided, it does not sound as though you accumulated unlawful presence and therefore you should not be subject to any bars or require any waivers.  This is assuming that as a student you were admitted for the duration of status (“D/S”).  If this is the case, your passport stamp and Form I-94 would have been clearly marked “D/S”.  With D/S, since you were not provided with a date upon which your authorized period of stay would expire, you could not have accumulated unlawful presence because you had no date beyond which to “overstay.” 

Regarding your potential marriage, I strongly caution you against entering a marriage for U.S. immigration purposes.  This is illegal and will result in a lifetime bar from the U.S. On the other hand, if you are in a romantic relationship with a U.S. citizen and want to be married for personal reasons, there is nothing wrong with seeking permanent residence in the U.S. based upon a marriage to a U.S. citizen.  The U.S. citizen, however, must be in the U.S. in order to petition for and sponsor you. 

I hope this information is helpful.  If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.