I would like to marry a man who has overstayed his visa 11 years. We would like to live in the U.S. He has been law abiding, with the exception of working in a family owned business. We are not sure if there is a better likelihood of him being able to stay if 1) we marry while he is in the US 2) her return to his country (which is primarily a Muslim country) and I apply for fiance visa 3) if there is a high likelihood that he will be denied fiancee visa, since he overstayed for such a long time and is from a Muslim country and 4) that I have not been to his birth country, nor have the finances to visit him, proving our relationship is "bona fide". If we were to marry here or he were to return to his country, what are the laws about "spousal or fiance ability to support the non resident?
If he were to return to his country under "voluntary deportation" would this help or hurt our chances of reuniting and residing in the US?
Most likely sponsoring your spouse from within the US is the way to go. If your husband leaves the US, he will likely become subject to an automatic 10 year bar to re-entry. (Although there are possible waivers of the 10 year bar, they are difficult to get - especially in a recent marriage.) Before filing, you need to definitely look the entire case (prior crimes, prior fraud or misrepresentations, the appearance of prior fraud or misrepresentations, prior applications, and more).
As for financial ability to support, the USCIS will not count the beneficiaries income unless he is in work authorized status. The income amount must be at least 125% of the federal poverty guidelines (link provided below) and depend on the size of the family. A friend or family member that is a US resident or Citizen can also act as an Affidavit of Support Co-Sponsor if needed.
NOTE: This communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship. Consultation with an experienced competent immigration attorney is often the best way to address the complexities of individual immigration issues.
If you're going to get married, marry here and file from within the US.
If you don't make enough, find a joint sponsor. But file from within the US. If he leaves, he's not coming back.
I have a large percentage of clientele from Muslim majority countries and you are right that the risk of delayed security checks, etc. is much higher. Of course, there is also the fact that he has 11 years of unlawful presence, so he would need a waiver to reenter the US which seems a long shot on the facts you provide.
As a Maryland attorney familiar with local USCIS procedures in Baltimore, you will also need to make sure you have all your i's dotted and t's crossed in your application forms; Baltimore can be a very picky office to deal with.
I would strongly advise you to talk to a lawyer.
You mention two critical facts to provide this answer. Your fiance entered the US lawfully with a visa and you are a US citizen. Those two facts indicate that once you and your fiance marry, your then husband will be eligible to adjust status.
My typical warning about travel applies here: never send a foreign national outside the United States without consulting an experienced and competent immigration attorney without understanding the risks of travel. This is especially true for someone who has overstayed a prior visa, but can also apply to persons in lawful status who will need to have a MRV (machine readable visa) reissued prior to entry to also persons with an approved travel document.
From a cost standpoint, going the "fiance" route is the most expensive and most time consuming way to solve your immigration problem.
To learn more about your fiance's immigration options, take advantage of our Free 30 Minute Consultation by clicking on the BOOK NOW button on our website: www.glinlaw.com and choose Option 1. The link below will also take you to the appointment scheduling system. We would be happy to work with you so that you can make an informed decision on how to proceed. .