You do not need a waiver for your overstay since your spouse is a US citizen. You should speak to an attorney to help you determine whether you are inadmissible. Not all convictions are problematic for immigration, and you mention only an arrest, not a conviction. Meet with an attorney BEFORE filing anything and definitely before you leave the country, as you may not need a waiver. If you leave you will definitely trigger the 10 year bar and need the waiver.
Samuel Ouya Maina, Esq. 415.391.6612 firstname.lastname@example.org Law Offices of S. Ouya Maina, PC 332 Pine Street, Suite 707 San Francisco, CA 94104
You may be inadmissible. Your arrest may be problematic, but that's unclear from the facts as presented. It isn't, therefore, clear whether you need a waiver. Speak with an attorney. Many will offer free initial consultations.
The answer provided is for general information purposes and cannot be relied upon. In order to provide legal advice, one must engage with a live attorney; this answer does not create such attorney-client relationship.
Stop!!! Don't leave. You seem very confused. Waivers are denied, even if you are married to a U.S. Citizen. Strangely, you do not seem to need a waiver!!!
The facts suggest that you can adjust status in the U.S. because you were admitted and inspected, even if you are now an overstay.
I strongly recommend an appointment or teleconference with a competent and experienced immigration attorney before a serious mistake is made! Good luck.
This is general information, not legal advice, and does not create an attorney client relationship.