Voluntary Departure of Undocumented Immigrants

 

Given the restrictive U.S. immigration policy and failure to pass a comprehensive immigration reform law, many Pinoy immigrants who are still in unlawful status are considering voluntarily departing from the United States to return to the homeland. What will it take for one to voluntarily depart the United States after overstaying for many years? What are the consequences of going through voluntary departure?

Teresita arrived in the United States in 2008 using a visitor’s visa. She overstayed in the United States and worked without legal authorization. After her visa expired, she worked as a caregiver for elderly patients.

After 7 years, Teresita finally made a decision to return to the Philippines. Her children are all grown up and the money she earned taking care of the elderly helped her young children finish their college education. Lately, she realized that she has a limited chance to legalize her stay, and lost hope that prospective changes in policy on undocumented immigrants would ever occur soon. Teresita is confident about her decision to depart and return to her family. She wants to know what steps to take and the effect of her departure on her future visa applications.

Voluntary Departure

Voluntary departure happens when an undocumented immigrant returns to his home country at his own expense without the need for government enforcement or deportation order.

Voluntary departure refers to a situation where the agencies such as the Department of Homeland Security or the Immigration Courts are not involved in the individual’s decision to depart from the United States. A Filipino national who is undocumented may simply purchase a one way ticket back to the homeland, carry a valid passport and then board the plane for the flight back to the Philippines. The US Department of Homeland Security does not need to be notified about the departure neither is there any penalty paid upon departure.

From a legal perspective, however, voluntary departure is used as a form of relief either in court or before the U.S. Department of Homeland Security. Examples of individuals who go through voluntary departure are airline passengers who are found inadmissible at the port of entry and depart voluntarily the same day of their arrival.

There is no negative legal consequence of a voluntary departure provided that the person who departed did not commit fraud or overstayed for more than 6 months.
In the case of Teresita, there is a legal consequence of her departure even if she departs of her own volition. Since she has resided in the United States for more than one year, under the 3-10 year bar rule under the U.S. immigration law, she is barred from returning to the U.S. for 10 years.

Considering the increase in the number of deportations and the gridlock in the U.S. Congress to fix the broken immigration system, it is not surprising that we will be witnessing individuals in unlawful status who will voluntarily leave the United States. This is also a very likely scenario especially if the controversial Republican primary contender wins the election.

(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based law firm and may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it., facebook.com/tancincolaw, www.tancinco.com or 1-888-930 0808)

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