If your family member is a U.S. citizen or a lawful permanent resident, she can file an I-130 to sponsor him for a green card, but he will probably have trouble applying for his green card when the I-130 is approved. In order to apply for a green card from within the U.S., you must have entered the U.S. legally, and it sounds like your family member's fiance did not. And if you leave the U.S. to apply for a green card at a U.S. consulate after having been in the U.S. for many years without immigration status, you subject yourself to a ten-year bar against returning. It is sometimes possible to get a waiver of this bar, but this is complicated and requires good legal representation. Your family member should consult with a good immigration lawyer in person to see what her fiance's options are and, if she decides to pursue one of them, she should hire a good lawyer to assist her and her fiance in the process.
How did he come to the U.S. when he was 17? With a visa? When he crossed the border, did he go through inspection? How many times did he enter, or try to enter, the U.S. in his entire life? What is his criminal history? What is the immigration status of your relative?
There are many, many more questions that need to be asked and answered. This is just a start. Depending on the answers, this person might have a relatively straight forward path to residency, or he might have a permanent, unwaivable bar to his future admission--the answer will be in the details.
She can file an I-130 for him, but the question is whether he is eligible to adjust his status in the U.S. He should consult with an immigration attorney before she files anything for him. Please see
Mr. Shusterman's (former INS Trial Attorney, 1976-82) response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
Your family member can marry this undocumented immigrant but given the violation of Voluntary Departure, he will face permanent immigration bar, which has to be removed before he can receive green card. You are to face a uphill battle to remove it and you are advised to find an attorney.
The spouse can file an I-130 petition but that does not mean that your relative can adjust status in the US. That will depend on whether he made a legal entry. If he did, the US citizen spouse can petition for him and he can adjust status in the US. If he didn't make a legal entry, it is much more complicated. I would recommend consulting with an immigration attorney.
Answers provided by Ksenia Maiorova, Esq. on Avvo.com are of a general nature and do not constitute legal advice.
It is possible that she can file an I-130 for him, but an attorney would need more facts to make the determination. He may or may not be eligible to adjust status in the US depending on his circumstances.
Generally there is no restriction on the filing of the I-130. The issue is the adjustment of status. Depending on the specific circumstances of the case, your family member may have to adjust in their country of origin. If that is the case, once your family member departs the United States, depending on the specific circumstances, he may face some severe penalties. I would strongly recommend that you consult with an immigration attorney that has experience handling waiver of inadmissibility cases. I would not recommend filing this case without the advise of an experienced attorney.
There are several possibilities here, as your question doesn't contain all the needed information. If there is no criminal history and the family member entered with inspection using a valid visa then he may be able to stay and adjust in the United States. If, however, there may be criminal activity by your relative, or he entered without inspection, used a fraudulent visa, etc., he may be ineligible to complete his case in the United States. During the past 24 months there have been several new laws passed that may be helpful to your relative. Contact an experienced immigration attorney who can share his/her knowledge and properly review your family member's case.