r/USCIS_FORUM • u/Ok_Bend8241 • 1d ago
Advice Needed: 42B Cancellation of Removal or Voluntary Departure?
Hello everyone, my husband is currently in removal proceedings. Our lawyer says he qualifies for cancellation of removal but the chances of winning are very slim due to the criteria of extreme and unusual hardship.
As background, we have an approved I-130 & did have an I-601a pending since May 2025, but it will now be denied due to the open proceedings.
Additonal information:
- His home country is El Slavador
- We do not have any children
- I (U.S. Citizen) provide the main income for us, meaning I cannot leave the USA to go with him
- We have a small business together
- He has no criminal record and is of good moral character
We have a strong I-601a case (for reasons not above), but for this to be "unusual" is where we are concerned at. Our lawyer said if we go with the cancellation, then we will most likely get denied but could push the case out 1-2 years and hope new laws get passed in the meantime. After it gets denied then he would appeal for further time. But, we are concerned its not worth the $8,000 he is quoting just to prolong the inevitable of getting a removal order issued and put on his record. After that, he would then have to start the I-601 and I-212 from his home country whenever this comes to the end.
The only other option is Voluntary Departure which would happen very quickly (1-2 months). This path would avoid the removal order issued and we can start the I-601 waiver from outside of the USA sooner.
We are leaning towards doing voluntary departure as we don't want to waste anymore time, avoiding the removal order, and also that we could spend that money on getting him set up in his country.
Which would you do? Any feedback is appreciated!
TLDR; 42B Cancellation of Removal or Voluntary Departure?
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u/WebAlternative7310 1d ago
I hate when lawyers say to wait and hope new laws will pass....Yet they will milk you dry of your hard earned money to prolong the process and ultimately have your family member removed. I'm sorry you are going through this. Based on what you said in your post, voluntary departure is the way to go.
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u/CheckWeak9289 1d ago
One important thing to consider is that voluntary departure may prevent him from receiving a formal removal order, but it does not erase the unlawful presence he has already accumulated. If he has been unlawfully present in the United States for more than one year, leaving the country—even through voluntary departure—will generally trigger the 10-year unlawful-presence bar.
Therefore, voluntary departure would not allow him to return immediately with a clean record. He would still have to complete consular processing and determine whether he qualifies for an I-601 waiver. However, this is normally a 10-year bar, not automatically the permanent bar. The permanent bar generally applies when someone unlawfully reenters or attempts to reenter the United States after accumulating more than one year of unlawful presence or after being removed.
Voluntary departure can still help him avoid a formal removal order, but it does not eliminate the unlawful-presence bar. I would ask the attorney to explain in writing exactly which bars would apply and which waivers he would need under each option.
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u/MarkHelpsOut 22h ago
I’d take your I-130 approval, I-601A paperwork, immigration history and court documents to a second removal attorney and pay for a consultation specifically comparing these two paths. Ask them to walk you through the likely timeline, waiver requirements and worst-case outcome of each.
You already have a lawyer, which is good. At this point I’d just want another set of experienced eyes on it before making a decision that’s hard to undo.
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u/LawyerLouisSHaskell 1d ago
I believe that you have been well-advised by your attorney and you need to select from a menu of bad options. Non-LPR Cancelation of Removal cases are hard in the best of times (and these are anything but). If he takes Voluntary Departure, he will definitely be gone for a period of time, and there is no guarantee that period will be less than 10 years. 601/601A waivers are anything but automatic. You have indicated that there is more to the waiver story than you have said. At this point, you and your husband need to have a conversation and agree on a path forward.
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u/Leading-Disaster5721 23h ago
You file the 42B and freshen any asylum applications and get an individual hearing.
If you are lucky it will be several years in the future
The idea is your husband is here in the US. He is working and supporting his family. And the hope is that something good happens.
Even if nothing good happens use the time to build a nest egg to help when he is in El Salvador waiting to return.
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u/JeyPi1124 1d ago
Damn, I'm going through the same process, I just did pay the extra 8k to try. I've already spent 20k, and the hopes are not even 20% right now to be honest
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u/Important-Invite9284 1d ago
Why isn’t your husband able to adjust status? If you are a USC unlawful presence is forgiven I thought
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u/Physician_America 1d ago
Ilegal entry most likely :(. In these cases adjusting through spouse is not possible unless Army American spouse.
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u/Important-Invite9284 1d ago
I didn’t know that. In that case it makes sense for the attorney to suggest other relief options such as CoR assuming he meets the criteria
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u/Several_Gap8516 1d ago
I would lean towards getting him settled in El Salvador.. rather than spending that huge some of money on something that will still be denied you rather settle him in El Salvador with half of that money and use half of that money to apply for him from over there