I with agree with my colleagues, and I would like to add some information about the Provisional Waiver Program. Beginning in March, persons who need a waiver because of their "unlawful presence" in the US can file for the waiver and receive an answer without leaving the United States. You can find more information at uscis.gov. Keep in mind that your spouse would still need to show that leaving the US would cause you "extreme hardship". I recommend speaking with an immigration attorney to see if you meet the requirements of "extreme hardship" before proceeding with a provisional waiver. Best of luck
Because your husband is out of status, you have limited options. If he has been out of status for too long, important time bars may apply to him if he were to leave the U.S. You should consult with an immigration attorney regarding this matter to see what options are available to you based on your specific situation.
The Law Office of Elliot M.S. Yi, 2075 SW First Avenue, Ste 2J, Portland, Oregon, 97201 www.emsylaw.com; firstname.lastname@example.org; 503-951-8209. This answer is intended for general informational purposes only and does not create an attorney-client relationship. The statement above does not constitute legal advice, as all the facts are not known.
Your husband cannot adjust his status in the United States without you first naturalizing. A person who falls into a preference category (i.e. a spouse of a permanent resident) cannot adjust their status in the United States if they have failed to maintain non-immigrant status. It does not matter that their priority date is current. The person you spoke with at USCIS is correct. if your husband files an application for adjustment of status as the facts stand, he will be denied and likely referred to the Immigration Court for removal proceedings.
He could proceed with consular processing. This would require him to depart the United States ad process the case overseas. However, your husband risks a bar to admission for unlawful presence. This bar can be waived, but only if you would suffer extreme hardship.
The best solution would be for you to apply for naturalization (assuming you are eligible). Once you naturalize, your husband can file his application for adjustment of status.
As the spouse of a permanent resident, your husband can only file an I-485 if he has been maintaining lawful status. If he has oversatyed his period of admission, and he files an I-485, the application will be denied and he will probably be referred to immigraiton court for deportation. So he may prefer to wait until you become a US citizen. Once that happens he may be able to file an I-485 because the spouse of a US citizen does not necessarily have to be in lawful status to file an I-485 based on the approved I-130. But even in this csae, you and your husband should meet with an immigration attorney to review all the facts of your case before filing anything.
By what date was he supposed to have left the U.S.?
When did you get your green card?
Has anybody ever petitioned for your husband in the past (prior spouses, prior prospective employers, a sibling), even if those petitions were later abandoned, or never used as the basis for adjustment or consular processing? If so--when?
Are you eligible to become a US citizen? If you become a US citizen, your husband can adjust status to that of legal permanent resident if his only immigration problem is overstaying his authorized stay.
Applications for naturalization are being processed much quicker than they were a few years ago. If you do not have any problem and you meet all the requirements, you likely can become a US citizen within 6 months.
You should review the specific facts with your attorney to find out your legal options.