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Voluntary Departure

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Jan 31, 2019)

What is voluntary departure?

Voluntary departure is the government's consent and permission to allow you depart the United States voluntarily instead of being removed pursuant to a removal order.

When can I apply for voluntary departure?

You can ask for voluntary departure when you first learn of the government's objection to your presence in the United States, when ICE arrests you, before even a removal proceeding has been brought against you, during the course of the removal proceeding, or at the conclusion of the removal proceeding.

Different qualifications and restrictions apply, depending on when you apply for voluntary departure.

What are the benefits of voluntary departure?

Receiving voluntary departure has several benefits:

  • It would allow you to make your own plans to leave the country on your own terms (within the allowed time period) instead of being deported in the custody of, or under the control of, ICE agents.
  • It would allow you more time to wind down your affairs in the United States before you are required to depart.
  • It would allow you avoid having an order of removal on your record.
  • It would allow you avoid a period of inadmissibility, which can be for 5, 10, or 20 years, or permanent, depending on the circumstances.

Voluntary departure does not erase any period of unlawful presence that you may have accumulated (see the exception below). Ordinarily, nonimmigrants who have accumulated more than 180 days but less than one year of unlawful presence would not be admissible for a period of three (3) years; and, nonimmigrants who have accumulated at least one year of unlawful presence would not be admissible for a period of ten (10) years.  See Consequences of Overstaying.

The three-year bar does not apply to nonimmigrants who voluntarily depart the United States after the commencement of the removal proceeding, so long as they have not accumulated one year or more of unlawful presence. However, nonimmigrants who have accumulated one year or more of unlawful presence would not be admissible for ten (10) years, even if they depart on voluntary departure.

What are the general qualifications and restrictions for receiving voluntary departure?

At any time before the conclusion of the removal proceeding, you may apply for voluntary departure. You can apply for voluntary departure even if no removal proceeding has been initiated against you.  The rules for voluntary departure at the conclusion of the removal proceeding are different.

To qualify for voluntary departure (before the conclusion of the removal proceeding), you must meet the following qualification.

  • You have not committed an aggravated felony and you are not a terrorist.
  • You have the means to depart the country voluntarily.

If you qualify under these criteria, you may be granted voluntary departure.  If you receive voluntary departure before the conclusion of a removal proceeding, you may be required to post bond to ensure your departure.  If you are required to post bond, you must do so within five (5) days.  The bond will be refunded, upon submission of proof of your arrangements for departing the United States within the allowed time or after your departure within the allowed time. Voluntary departures granted before the conclusion of a removal proceeding may not be for a period of more than 120 days.

What are the qualifications for receiving voluntary departure at the conclusion of the removal proceeding?

You may apply for voluntary departure at the conclusion of the proceeding, if

  • You were physically present in the United States for at least one (1) year before the date the Notice to Appear (NTA) was issued.
  • You have been a person of good moral character for at least five (5) years before applying for voluntary departure.
  • You have not committed an aggravated felony or one of the enumerated crimes regarding security and related matters.
  • You can show that you have the means to depart the country voluntarily.

If you qualify under these criteria, you may be granted voluntary departure.  If you receive voluntary departure at this stage, you will be required to post bond of at least $500, within five (5) days, to ensure your departure.  The bond will be refunded, upon submission of proof of your arrangements for departing the United Sates within the allowed time or after your departure within the allowed time.  Voluntary departures granted at the conclusion of a removal proceeding may not be for a period of more than 60 days.

What is the impact of voluntary departure on accumulation of days of unlawful presence?

Those granted voluntary departure will stop accumulating days of unlawful presence on the day the immigration court grants them voluntary departure and will resume accumulating days of unlawful presence the day after the expiration of their voluntary departure, if they are still in the country.

When would voluntary departure help me avoid inadmissibility due to unlawful presence?

One important benefit of voluntary departure is that under certain circumstances it would allow you to avoid the 3-year inadmissibility bar. Ordinarily, those who have accumulated more than 180 days but less than one (1) year of unlawful presence will be deemed inadmissible for 3 years after their departure from the United States. However, if you have accumulated more than 180 days but less than one year, of unlawful presence in the United States and then are granted voluntary departure after the commencement of the removal proceeding, you will not be subject to the 3-year inadmissibility bar—assuming you depart before your voluntary departure expires.

Under some circumstances, this exception may play an important role in your strategy to gain immigrant status (green card). If you are the beneficiary of a pending or approved immigrant petition, such as an employment-based immigrant petition, and if because of your circumstances you cannot adjust your status in the United States, you may leave the country and apply for an immigrant visa at a U.S. consulate overseas without being considered inadmissible due to prior unlawful presence of more than 180 days but less than one (1) year.

What are the consequences of failing to depart the United States after receiving voluntary departure?

If you receive voluntary departure but fail to depart within the allowed time, you will be subject to a fine of at least $1,000 and up to $5,000.  In addition, for a period of ten (10) years, you will not be eligible to apply for various kinds of immigration relief, such as cancellation of removal, adjustment of status, change of status, registry, and voluntary departure.

If you depart the country after the period of voluntary departure has expired, you will be deemed to have self-deported and would be barred from admission to the United States for a number of years or permanently (depending on the circumstances).

Related Topics:

Removal Proceedings

Prosecutorial Discretion

Consequences of Overstaying

Provisional Waiver for Unlawful Presence

 

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