Confused Fiance: What are the penalties for overstay and failing to appear for Immigration Court?

QUESTION: Hello, I am very confused about my fiance's status.  She entered the country illegally. She was caught and given a court order to appear. She neglected to go, stayed, had a child, and we left on our own accord, without anyone stopping us. She was in the country from May 2006 until November 2009. Since she did not appear at her hearing, does she have a deportation order? And if she left on her own, is that order still in effect, or does that affect us in any way? Our original intention was to just leave this crazy life behind and live in Peru, unfortunately, after one month in Peru, I spent many days at the doctor’s office with uncontrollable asthma. So now she’s stuck there and I am stuck here. We are not sure what the ban is for a failure to appear and leaving on her own accord. Obviously, it’s very specific and very gray, but we want to be together as soon as possible and we feel that with our circumstances, the only place we are capable of being together is here in the U.S.  We are expecting an addition to the family, and I just can’t be stuck in a different country from my baby, but me being in Peru is highly unlikely due to my health issues there. I’ve read all about hardships and waivers, but no one seems to have an answer as to the actual ban she carries. I have heard a 5 year unwaiveable ban and an additional 5 years that is waiveable.  I understand its a gray area and is specific to each case, but if you had a general outline of a circumstance as such, what would that be?  Thanks for reading and responding, I look forward to your answer! 

REPLY:  Based upon the information you provided, I have set forth my general outline of the perceived situation below.  As you acknowledged, I cannot specifically advise you without first learning more about the particular facts of your case. 

When individuals fail to appear for removal proceedings in Immigration Court, it is the policy of the Department of Homeland Security (“DHS”) to move the Immigration Judge to issue an order of removal in absentia.  This is done in 99% of cases in which individuals do not appear for court.  Thus, I would assume that your fiancé was ordered removed.  Unfortunately, her departure on her own has absolutely no effect on the order against her – the deportation/removal order remains in effect.  When an individual is ordered removed by an Immigration Judge, s/he is barred from returning to the U.S. for a period of 10 years.  The 10 years begins to run on the date of the removal order.  However, s/he may apply to waive this 10-year ban by submitting a Form I-212, Application for Permission to Reapply for Admission After Deportation or Removal. 

Since she entered illegally and remained in the U.S. for a period over one year, your fiancé is also inadmissible to the U.S. for a period of 10 years due to the accumulation of unlawful presence.  This 10 year period begins to run on the date on which she departed the U.S.  In order to overcome the 10-year bar for unlawful presence, your fiancé will need to apply for a Form I-601, Application for Waiver of Grounds of Inadmissibility.  This is the waiver that is based upon hardship to a U.S. citizen spouse (not fiancé).  This waiver is significantly more difficult to obtain than the I-212.  

The first step toward applying for your wife to return to the U.S. as a permanent resident is for the two of you to get married.  Once married, you will then file Form I-130, Petition for Alien Relative, with the DHS in the U.S.  Upon approval, which can take several months, the case is then transferred to the U.S. Department of State (“DOS”).  The DOS will issue instructions for your wife’s immigrant visa application.  Once the application and filing fees are received, the DOS will schedule your wife to appear for a visa interview at the U.S. Consulate in Lima.  

At the Consular interview your wife will be told that she does not qualify for a visa due to her previous removal and unlawful presence.  At that time, she will present her waiver applications.  The Consul will review the application packages but does not have jurisdiction to issue a decision – only the DHS can do that.  The Consul will forward the waiver applications to the DHS for adjudication. 

Assuming that the waivers are approved by the DHS, the file is then returned to Lima for the issuance of the immigrant visa, which your wife can then use to enter the U.S. 

This is a general overview of the process, which can take over one (1) year from start to finish.  Therefore, I recommend getting started right away.