If if your wife has attended school in United States. She may be eligible for deferred action for childhood arrivals. This program is known as DACA. if she is eligible for DACA the program should result in her receiving employment authorization and permit her to remain in United States for 2 years, which may be renewed indefinitely. Also while she is in the DACA program, the time in the program is not considered unlawful presence for visa issuance. What this means for our is that if she is not yet 18 1/2 when she is ready to leave. United States to obtain the permanent resident visa she will not need a waiver to return.
Meanwhile, you should submit a petition for her as her spouse. Once a petition was approved if she does not need the waiver she will need to depart the United States to obtain her or lawful permanent resident status. If she does need the waiver there is a new process of permits filing of the waiver application while she is in United States and if approved, she will receive a provisional approval and then depart United States to obtain her permanent resident status.
additionally, at the present time Congress is considering changes to the immigration and nationality act. While no one knows what these changes may be, it is very likely that if changes are made that these changes may favorably impact your spouse. Since your wife has a very good situation you should begin the process . First, with DACA then with the permanent resident application.
As she is 18 and assuming no criminal history, then she's eligible to leave and return lawfully (after you petition for her) and without her having a bar to returning. A person unlawfully present (without status) in the U.S. for than one year who then departs the U.S. is barred from returning for ten years. However, "unlawful presence" does not attach to minor children. It only attaches when they turn 18. If she leaves before she has 6 months of unlawful presence, she can return after your visa petition for her has been approved and processed. If she's 18 1/2 then she'll need a grant of voluntary departure from an immigration judge, depart before she turns 19, and then she can return without the bar. You need to move quickly to preserve her rights here and your family's unity. You should retain counsel immediately.
If you are a U.S. citizen, you can petition for her to get her green card, and eventually her citizenship. If your wife entered without documents, she'll have to go back to her country to finish the process there. Depending on exactly how old she is now, she may have accrued unlawful presence. If that's the case, she'll get a punishment of 3 or 10 years that she has to spend outside of the U.S. It's possible to ask for a waiver to remove that punishment, in which she'll have to prove that you will suffer extreme and unusual hardship if she can't come back to the U.S. One benefit she might have is that they don't start counting unlawful presence until someone is 18, and there isn't a punishment until you have more than 180 days of unlawful presence. It'd be best for you to talk to an immigration lawyer about this case as soon as possible. Your wife's situation is a complicated one, and a good lawyer will be able to help guide you through this process.
The information offered is general in nature and not meant to be relied upon as legal advice. No client-attorney relationship is created through this information. Please consult an attorney prior to making legal decisions.
I agree with my colleagues. You should consult an experienced immigration attorney for this matter. You may schedule a consultation with an immigration lawyer in your area, my firm is handling these matters in New York. If you would like free legal updates on these immigration issues you may sign up for our newsletter at http://www.shautsova.com .
Att. number 917-885-2261 This advice does not create an attorney client relationship. No specific legal advice may be offered by the lawyer until a conflicts check is undertaken. Information sent through a web form or via email may not be treated as confidential. Please accept my apologies for spelling mistakes.
Law Office of Alena Shautsova www.shautsova.com