When was the labor certification filed? OIf it was before April 30, 2001, he may have a chance under 245(i). If not , he can not unless the law changes.
Many attorneys advise clients to secure a place in line and indicate IF and when the law ever changes.. it MAY help. I can not tell you what this attorney told your friend
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Generally speaking, one must be maintaining lawful status in order to adjust status in the United States based upon an employed based immigrant visa. There are some exceptions to this rule, so without knowing the specifics of your friends case it is really impossible to answer your question with any specificity. If your friend has questions as to the viability of his case he should consult with an experienced immigration attorney for a second opinon.
Jeffrey A. Devore, Esq.
Board Certified Immigration Attorney
Devore Law Group, P.A.
2925 PGA Blvd., Suite 204
Palm Beach Gardens, FL 33410
Telephone: (561) 478-5353
Facsimile: (561) 478-2144
You're correct to be concerned. He may need to leave the US and get a waiver before he can come back.
www.capriotti.com -- firstname.lastname@example.org -- Senior Legal Counsel -- Capriotti International Law -- Legal disclaimer: This answer is offered for informational purposes only. It does not constitute an attorney-client relationship. Contact the American Immigration Lawyers Association www.aila.org for a referral to an experienced immigration attorney.
Unfortunately, I have seen cases where the labor certification is filed and then the immigrant visa petition and then the immigrant gets very bad advice and files for adjustment when the immigrant is not eligible. This is the quickest way into removal proceedings.
I suggest having your friend get a second opinion.
He may be able to obtain lawful permanent residency depending upon when he entered the US. A law known as 245i would enable such a person to apply for a green card if a family member a petition or a US employer filed a labor certification for him or her on or before April 30, 2001. There are other factors which may impinge on his eligibility but generally speaking one could under such a scenario obtain permanent residency despite having entered the US illegally.