Unfortunately, I do not have very good news.

In this situation, a US citizen spouse can petition for their alien spouse, and the petition may even be approved. But the spouse who entered the US illegally will not be permitted to adjust their status from within the US.

First, the US citizen will file the I-130, Petition for Alien Relative. If it is approved, then the immigrant would have to exit the US and process their Immigrant Visa (CR-1/IR-1) through US Embassy or Consulate abroad.

This application likely will be denied, because of the immigrant's inadmissibility based on their illegal entry and unlawful presence in the US. Any alien who is 18.5 years old and has been in the US unlawfully for 180 days or more, is subject to a 3 year ban from entering the US. If it has been 1 year or more, they are subject to at least a 10 year ban. To overcome this, they would have to wait the time and then apply to come into the US, or they would have to submit a request for an I-601 waiver in order to re-enter sooner.

In that case, when the immigrant goes to the US consulate in their home country, they should take form I-601, Application for Waiver of Grounds of Inadmissibility. These are difficult to get approved because the immigrant must show that a qualified US citizen immediate relative will experience "extreme hardship" if they are not permitted to reenter the US; or in the alternative, the hardship the US citizen will endure if the US citizen(s) have to go to their home country in order for the family to be together. It is for this reason that most people do not return to their home countries to process their legal status.

Here is good information on the I-601 Waiver: http://www.ilw.com/articles/2007,0717-scott.shtm. It gives great guidance on the "extreme hardship" requirement.

I'm very sorry. I know this probably is not the news you wanted to hear, but it is the reality right now. I wish it were not - you can't imagine the number of people who are in the same situation. At this point, this is their only legal option.

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