If you are an "overstay", you should be able to adjust status to Lawful Permanent Resident (LPR) once you marry a U.S. citizen. If you leave, you will likely be barred from returning to the U.S. for 10 years unless you obtain a waiver. You should therefore not leave now based upon the facts that you have provided.
However, before you take any action, you should consult an immigration lawyer. Do this as soon as possible. There is much more to our profession than filling out forms. We can (and do) advise foreign nationals about the pitfalls associated with applications. There is a lot of analysis that occurs behind the scenes. Get a lawyer and do it right the first time. Repeating anything in the world of immigration is on a time scale of months or years. As a result, it can easily cost you more time and money to obtain an immigration benefit on your own than if you use an attorney. Plus, keep in mind that there are significant “opportunity costs” as well. (A good example is where someone has to re-submit a work permit application and wait a few additional months before working).
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Dean P. Murray
The Murray Law Firm
560 Sylvan Avenue
Englewood Cliffs, NJ 07632
Mr. Murray's response is NOT legal advice and does NOT create an attorney-client relationship. You should NOT rely on this response. Mr. Murray's response was generated without conducting a full inquiry as would occur during a face to face attorney-client consultation. It is likely that the response above may be made less accurate, or become entirely inaccurate, as you, i.e. the questioner, disclose additional facts that should only be discussed during a private consultation with an attorney. I strongly recommend that you consult an attorney who is licensed to practice law in your state (or, in the case of immigration law, and attorney in ANY state), whereupon all relevant facts will be discussed. All responses posted by Mr. Murray on Avvo.com are intended as general information for the education of the public, and not for any specific individual.
If you leave you will be subject to a 10 year bar. Because you entered with a visa, you should be able to stay and adjust status.
Please be advised my answers to questions does not constitute legal advise and you should not rely on it, due to the fact that we have never met, I have not been aprised of the facts in you case nor have I reviewed any documents.
If you leave the 10 year bar will apply. If you are considering marrying someone who will be a us citizen in one year, you would be very foolish to leave the us before marrying and obtaining a green card. It would be a good idea for you and your girlfriend to meet with a lawyer so you both understand your options and the risks involved.
10 year bar. I agree with my colleagues, if you are getting married anyway, do so, apply for adjustment. I strongly recommend retaining counsel
This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.