Generally, a person who entered the country illegally and is here without proper immigration status must return to his/her home country to file an immigrant visa petition to be able to return to the United States. The problem is, once he/she leaves the country, he/she faces an automatic unlawful presence bar of inadmissibility of 3 or 10 years before they can return (3 years if he/she had been in the U.S. less than 6 months and left voluntarily, 10 years if in the U.S. more than a year).
One exception to this is if the foreign national was the beneficiary of a labor certification application, or immigrant visa petition for an alien relative (I-130) or immigrant petition for alien worker (I-140). In this case, he/she may file for an adjustment of status under INA § 245(i) to remain in the country for the processing of the visa petition. This law, which is no longer in effect (but petitioners who fit within the criteria are still grandfathered into the process), allowed for the payment of a $1,000 fine to waive the unlawful presence bar. The requirements are that the foreign national is the beneficiary of the qualifying immigrant or labor certification petition filed on or before April 30, 2001; that if the foreign national was the principal beneficiary, that he/she was physically present in the U.S. on December 21, 2000; that the foreign national has a visa immediately available to him/her and he/she is admissible to the U.S; and the foreign national must pay an additional $1000 fee.
In the case that a 3 or 10 year bar is applicable, the immigrant may file an I-601 extreme hardship waiver to eliminate the unlawful presence bar to returning to the U.S., but the time it takes for DHS to process these petitions can take weeks, months, or even years, and the person must remain in their home country until the waiver is approved. In deciding what qualifies as extreme hardship, the DHS official will consider: 1) the presence of LPR or USC family ties to the U.S.; 2) the qualifying relative's family ties outside the U.S.; 3) the country conditions in the country of relocation and the qualifying relative's ties to that country; 4) the financial impact of departure from the U.S.; and, 5) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation. They may also consider factors such as the impact of separation; the economic and other conditions in the country to which she will accompany her spouse or parent; the financial, emotional, cultural, and political conditions in that country and her ability to raise children and other quality of life factors, like health and employability.
A new development, that has not gone into effect yet, is the Obama Administration’s announcement of changes to this process that will allow certain immediate family members to remain in the U.S. while their extreme hardship waivers are being processed, and only have to return to their home country for an interview and visa processing. In order to be eligible for this waiver, though, the foreign national must be an immediate relative of a U.S. Citizen (not a lawful permanent resident) and there must be extreme hardship to qualifying relatives who are U.S. Citizens if a person has to leave the country for the processing of their petition. The considerations for extreme hardship under this new announcement are the same as the I-601 extreme hardship waiver considerations.
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Your marriage is still legal even though he was not legally in the United States. Is your husband still in the United States? Are your children U.S. citizens? Was he ever arrested? How's your health and your children's health? There are many questions that need to be answered
He could potentially adjust his status based off of his marriage to you, but there will be numerous legal obstacles he will have to overcome. You ABSOLUTELY need to speak with an immigration attorney as soon as possible. He or she can help guide you through the process.
It will not be possible for this question to be adequately answered on this website given the information you've provided. Good luck to you and your family.
As a US citizen you can always petition for your husband, the question is to see if he qualifies for a waiver, or if he qualifies to adjust status in the US. You must consult personally with an experienced immigration attorney to see your options.
Immigration status is largely irrelevant to whether your marriage is
"legal." If you legally celebrated your marriage then you are married.
You can certainly petition for your husband, however his unlawful status
will cause certain complications. Consult with an experienced
immigration attorney who can provide you with case specific advice.
I agree with my colleagues above. As long as the marriage was a lawful marriage in the state in which you were married, it will be just fine for immigration purposes.
As a U.S. citizen, you can petition for your husband. The first form you will need to file is an I-130. He will need to remain in Mexico until an interview is scheduled at the U.S. consulate. The main problem most individuals face in your situation is that he has been present unlawfully in the U.S. for more than a year. That carries a 10 year bar of inadmissibility, i.e., he will not be allowed into the U.S. following his interview because of his previous unlawful presence in the U.S.
The good news is that there is a waiver available in this situation, but it is not easy to obtain. You will have to show that you will suffere extreme hardship without him in the U.S. and if you accompanied him to Mexico.
As mentioned above, there are a lot of issues to sort out in these cases, and marriage to a U.S. citizen does not automatically qualify someone to come into the U.S. I definitely recommend that you speak with a qualified immigration attorney to help you navigate this process. Be sure to be open and honest about all details with your attorney, and be ready to supply any and all documents he or she may ask of you. Good luck!
No liability is assumed for reliance on the posted information, and nothing in this post is intended to establish an attorney-client relationship. If you are in need of immigration assistance, please schedule a consultation with an immigration lawyer before acting on anything you have read on this site or anywhere else. This answer should not be misconstrued as a substitute for consulting with a qualified immigration attorney.