A: No. Unlawful presence is only triggered upon departure from the U.S. For this reason, many individuals in the U.S. after EWI choose not to complete the immigrantion process, which requires departure and attendance at an interview at a U.S. Consulate abroad.
A: Yes. there are both immigration and nonimmigrant waivers available that, if granted, will allow the applicant to return to the U.S. prior to the expiration of that application bar. The immigrant waiver (Form I-601) is significantly more difficult to obtain and requires proof that a U.S. citizen relative will suffer "extreme hardship" if the non-citizen is not allowed to live with him/her in the U.S.
A: In most cases, the answer is yes. As the spouse of a U.S. citizen, you are considered to be an "immediate relative" under immigration law. As such, you can apply for adjustment of status (permanent residence/green card) upon approval of an immediate relaltive petition (Form I-130). In order to be eligible for adjustment of status (which means you can apply for permanent residence without leaving the U.S.), however, you must have made a legal entry into the U.S.
A: As a foreign national who entered the U.S. without inspection ("EWI"), you are subject to removal under the immigration law. You are also accumulating unlawful presence in the U.S. Individuals who have accumulated periods of unlawful presence and then depart the U.S. face bars to re-entry, the length of which depends on how long the individual was unlawfully present. If you were unlawfully present in the U.S. for a period of less than 180 days (6 months), then you do not face a bar to returning. If you were unlawfully present in the U.S. for a period greater than 180 days but less than one year before departing the U.S., you face a three (3) year bar. if you have been unlawfully present in the U.S. for a period of one (1) year or more and depart the country, you will face a ten (10) year bar.
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