Generally, because your husband entered without inspection, he will not be able to adjust status here in the US. This means that he will have to go back home first but he could be barred from returning to the US for either 3 or 10 years, depending on how long he has been out of status here in the US. However, if you can prove "extreme hardship" and seek a waiver of his 3 or 10 year bar, then he may be able to adjust here in the US without having to return home first. Please note that extreme hardship is very hard to prove.
The material contained in this post is for informational purposes only and does not constitute legal advice. You should seek the assistance from an experienced immigration attorney to discuss the facts of your situation.
I would recommend that you speak to an attorney that specializes in immigration issues to discuss your options in more detail. If someone filed a family or employment-based immigration petition for your husband or his parents before May 1, 2001, he MAY be eligible to become a permanent resident without leaving the United States. If not, then he would have to return to his home country to process for an immigrant visa. However, if he leaves the United States after being in the US for more than 1 year without status then he will trigger a 10 year bar from returning to the United States unless he obtains a waiver (i.e. a pardon) from the US government. This waiver would require him to show that you would suffer extreme hardship if he were not permitted to return to the US. Whether your husband's request for a waiver is likely to be approved depends on the hardship that you will face and what country he is from.
Elizabeth Rompf Bruen
Attorney at Law
Scott D. Pollock & Associates, P.C.
105 W. Madison Street, Suite 2200
Chicago, IL 60602
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