You can marry him, but to claim him to make him legal in the US., because he came into the U.S. illegally, he must:
1. Have come into the United States at certain period of time, and under certain conditions, to be able for you to claim him, or
2. Apply for a new waiver, BUT THIS WAIVER IS NOT IN EFFECT YET, IMMIGRATION IS WORKING ON IT STILL, when that waiver comes into effect, to ask for forgiveness for coming without documents to the U.S. and showing a hardship (ex.: you have your child on the way, among many other factors).
Unfortunately, this is a question which cannot be fully answered here because of its complexity. You may want to have a direct consultation with a lawyer of your choice to review his case and circumstances with more detail to be able to reach a positive resolution for him.
DO NOT FILE to claim him with immigration until you speak with a lawyer, since once you file if there are no defenses to his undocumented status in the U.S. he could be placed in removal (deportation) proceedings and this may make things even more difficult.
Alejandro R. Lopez, Esq.
Law Office of Alejandro R. Lopez, P.A.
4465 Edgewater Dr.,
Orlando, Fla. 32804
Ph.: (407) 649-1404
This is an interesting question. You need to consult with an experienced immigration attorney. Your answer really depends on how old your boyfriend is and how long he has been here past his 18th birthday.
Persons under the age of 18 do not generate "unlawful presence." You stated that he entered when he was 18 and that you have been together for 2.5 years. As soon as he becomes 18 years old, he begins to generate unlawful presence.
If he generates more than one year of unlawful presence and then subsequently departs the United States, he is he is statutorily ineligible for the issuance of a visa for a period of 10 years. This is referred to as the 10 year bar.
If he generates more than 6 months but less than 1 year of unlawful presence and then subsequently departs the United States, he will be statutorily ineligible for the issuance of a visa for a period of 3 years. This is referred to as the 3 year bar.
HOWEVER, if he generates less than 6 months of unlawful presence and departs the United States, he has not generated any unlawful presence. You could petition for your boyfriend him as an immediate relative of finance - after processing, he would be able to enter with an immigrant visa.
My colleague is correct. Assuming that your boyfriend is past the 6 months or 1 year of unlawful presence, he will be barred from the issuance of a visa for a period of 3 or 10 years if you petition for him.
Typically, in these kinds of cases, the beneficiary (your boyfriend) would have to leave the United States (thereby triggering the bar) and re-enter on a visa. You would need to file a waiver excusing his unlawful presence.
The law my colleague is referring to is the proposed stateside waiver bill. It allows individuals like your boyfriend to remain in the United States to file their petition and waiver. The waiver would be based on extreme hardship, which you would have to submit evidence of.
The law is likely to be passed by the end of the year. I strongly suggest hiring an experienced immigration attorney.
I hope this helps.
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Your questions doesn't really say whether he entered legally and then became illegal or if he entered illegally. With that said you really need to consult with an experienced immigration lawyer. Also, since he came when he was 16 there may be a possibility that he could apply for deferred action under the plan that President Obama announced earlier today. There are other requirements for deferred action such as having to have been here for 5 years prior to June 15, 2012, either be in school or have graduated high school and not have certain criminal convcitions. These are things that an attorney will discuss with you.