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I came to the USA to see my long-distance partner. I am from Australia, 21 and came on the visa waiver program (the 90 days period) in March 2014. It was meant to be a visiting trip, but he proposed to me out of the blue and I accepted. Being married to the guy I had fallen for was a dream and eventually the 90 days passed and I decided to stay.

I have no criminal record, and needless to say I was completely taken by him. He was a sweetheart.

But it's almost been a year and the marriage has gone sour to fighting every other day. We were worlds apart with how our minds worked and constantly grew upset over the smallest things. This made me realise that marrying was a mistake -- even though I still love him, I know I can't take this anymore. I couldn't do this. He had promised I would gain my greencard --- or at least /start/ on getting a greencard. But now it's being pushed back to two years and I can't wait that long. The absence of a greencard has brought stress onto our relationship. We have hardly any money and struggled for a very long time. He has been unemployed for almost a year and I just can't take it. I've been very supportive with his decisions but this has given me a very serious wake-up call.

I'm now talking to relatives back in Australia to see if I can go back home. I'm terrified at the prospect that something will happen between leaving this country and arriving back home with Immigration. Will I be sent to jail or worse? I know that there will be a ban on coming back to America because I left a year after my 90 days visa waiver -- that I understand.

I love this man, but in my soul I know that this wasn't how it was meant to be.

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    Did you file for adjustment of status? – Quora Feans Feb 15 '15 at 2:36
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    Are you planning to file an I-601 waiver, to waive your unlawful presence if you are married to a US citizen ? – Quora Feans Feb 15 '15 at 2:44
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    Non-citizens who have an application for change, extension, or adjustment of status for their visa pending at the time of their former visa’s expiration, and those who have not worked illegally after their visa expired, are not considered to be unlawfully present for the purposes of the three- and 10-year bars to admission. – Quora Feans Feb 15 '15 at 2:50
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    @QuoraFeans this should be in an answer I believe. It's absolutely great information. I would expand a little -- is just the ban waived if you didn't work or do you even get to keep your ESTA rights? Are you banned for any time at all? – chx Feb 15 '15 at 9:23
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Do not be terrified: the USA authorities will be quite glad to get rid of an illegal immigrant and won't spend a dime on her. Think of it -- do they want to erect barriers for people leaving ?

You will lose your ESTA privileges for life and will need a B1/2 visa the next time you want to come to the USA and that won't be any time soon: you are banned for at least three years (overstay by more 180 days: 3 years ban) and if you overstay by a year then the ban is ten years but beyond that, there are no repercussions.

  • Care to add some authoritative references? – JoErNanO Feb 15 '15 at 12:38
  • Actually, there are some situations in immigration law where you may be perfectly legally in the USA, but by leaving retroactively become an illegal immigrant. Sometimes, leaving is not a good idea. – Kevin Keane Jun 15 '15 at 0:59
  • @KevinKeane: What is such a situation? – user102008 Jul 4 '16 at 21:03
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    @user102008 I'm not enough of a lawyer (I'm not a lawyer at all) to answer this question conclusively. One situation I am aware of has been fixed by a change in regulations a few years ago. The scenario was this: somebody comes to the US as, say, a tourist (allowed time: 6 months). He applies for an extension. The old INS used to take up to a year to process those. While the case was pending, the person would be considered legally in the USA. But if he left, the application would be treated as if it had been never filed - and the person would retroactively be unlawfully present. – Kevin Keane Jul 8 '16 at 7:15
  • @user102008 And to make matters worse: you could only apply for an extension by six months. Since INS took about a year, the approval would have expired before it was even arrived! Talk about a bizarro situation. You are legally in the USA until INS approves your case. Then you are unlawfully present. And if you leave after the time you asked for, you are also unlawfully present. What's a person supposed to do in that situation? As I said, this scenario has been fixed, but there may well be other situations like it. – Kevin Keane Jul 8 '16 at 7:19
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You will be allowed to leave the USA without a problem, but unless you filed for adjustment of status, you will not be able to return to the USA for either three or ten years (depends on exactly how long you overstayed the visa waiver).

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