Your will have to apply for an immigrant visa from outside the U.S. because of your unlawful entry and need a waiver because of your unlawful presence. You may benefit from a proposed change in the application procedure for waiver applications. You should consult with an immigration attorney for an assessment of your case before you take any steps.
San Francisco Immigration Attorney for removal defense, all work visas and avenues to permanent residence, investors, and naturalization. Call 415.834.0600 for free phone consultation - mention Avvo! 235 Montgomery Street, Suite 728, San Francisco, CA 94104 / www.lawbridges.com
Based on what you have provided, it does appear that the only way for you to obtain lawful permanent status will be through your husband's petition on your behalf. Unless you are grandfathered under section 245i(by having had a petition filed on your behalf(directly or as a beneficiary) on or before April 30, 2001) you will not be able to adjust your status in the US. Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years. They can receive a waiver to allow them to return to their families by showing that their U.S. citizen family member would face extreme hardship as a result of the separation. Just last month (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the wiaver process by allowing you to file for a provisional waiver in the US-this regulation is currently stil under review and not yet finalized. You should consult with an experienced immigration counsel to assess your options as based on the circumstances you have presented, you may also be qualified for Cancellation of Removal for non Lawful Permanent Residents, but which can only applied for defensively if you are in fact placed in removal proceedings.
You may be eligible for cancellation of removal. You need to contact a very experienced lawyer to help you with this. This would be done exclusively inside the United States and you would not need to return to mexico.
The USCIS recently confirmed that it will implement its new program to adjudicate waivers of inadmissibility in circumstances such as yours by the end of the year. Generally, the requirements of this new program are as follows:
1. You are no inadmissible on any other basis (e.g., no criminal convictions, and only the one illegal entry into the U.S.).
2. You are married to a U.S. citizen.
3. It would be an "extreme hardship" to your spouse if you were to return to Mexico.
This is a very rough summary of the requirements, tailored to your situation and based on the limited information provided. You should discuss your case with an experience immigration attorney. If your application is approved, you would only have to go to Mexico for a week or so, to undergo a medical exam, attend an interview, and pick up your immigrant visa.
This is only a preliminary response to an inquiry, based on incomplete information. Helpful advice and counsel can only be provided after you have discussed your case with Mr. Bach, he is familiar with all of the circumstances of your case, and the advice is provided in writing. Any opinion provided here should not be relied upon for any purpose. No attorney/client relationship is formed until you have formally retained our law firm to represent you. We are not responsible for any action or lack of action you take based on this preliminary response.