No, if he has a clean record, under the Morton Memo of 2011 he will not be placed in removal proceedings. You can do a request to DHS to place him in proceedings if you can should exception humanitarian concerns. Otherwise you should proceed with the I-130 and consular processing with a waiver.
The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.
My advice is to wait a little bit longer, since there should be a program in place in the very near future that will allow you and your husband to apply for a waiver inside the U.S. for his past unlawful presence, and if that waiver is approved, he could then depart the U.S. and return on an immigrant visa.
I agree with Mr. Barr. It is always a big risk to place someone in removal. Hopefully the provisional waiver will be here soon and you will be able to proceed.
This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.
I concur that placing an alien in removal proceedings can be risky as there is no guarantee that DHS will agree to admin close the proceedings. Moreover there are other considerations that must be accounted for before considering putting him in Removal. What is the hardship you or your children would face if he was ordered removed? the burden is an extremely difficult one. Additionally you must consider all negative factors that can impact an IJ's ruling based on discretionary issues, including but not limited to, properly filed his tax returns, Criminal convictions or history of arrest here or anywhere else in the world. Are there any outstanding child support issues, judgements, liens etc.
Since there is already an approved 1-130 my recommendation would be to wait until the stateside unlawful presence waiver is written into the fed regs. Erring on the side of caution. Good Luck!
I want you to meet with a good lawyer who has a track record of winning 240A(b) cases to have your case evaluated. If I think you will win, we go into proceedings and get your husband a work card while we work for the green card. If COR does not work, we have the I-130/CP as the backup.
I am a pretty smart guy, but I do not know everything. My answers here come from the knowledge I carry around in my head--if you want me to look something up, you should come see me. Take any advice here as being general in nature. Please be careful with your life and make decisions that are smart.
I would not never advise a client to deliberately seek removal proceedings in this situation. Cancellation of removal for non-permanent residents carries with it an extremely difficult burden of proof - that of extremely unusual hardship to a qualifying U.S. relative. Family separation, without more, is not sufficient to meet this standard. Usually, the cases that tend to win involve some kind of very serious medical condition. Even if one of the qualifying relatives has a medical condition, it is far from certain that your husband would prevail in his case. IF he does not prevail, he will be deported, and subject to bars to re-entry. At this point, your best bet is to either wait for the new waiver rules to be passed, or (though somewhat less certain in terms of application to your specific case) for immigration reform. I would recommend that you discuss your case with an immigration attorney before proceeding. The stakes are too high to make a mistake.
I would not be in a rush to put your husband in removal proceedings. Just because you have 3 children does not mean that he will be granted cancellation of removal and aside from that we know nothing about his case. Likewise, there may be other better options. Consult with an experienced immigration attorney who can review the case and advise you how best to proceed.
While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation. Call +1-561-478-5353 to schedule a consultation with Mr. Devore.