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Question: Hello. My fiance came to US illegally from Honduras when he was twenty, he is about to be 26 in less than a month. He has no criminal record here or in Honduras. We also have a son who will be a year the 20th of July. What is the best way to go about starting off the process?

Response: You can get married and Petition for him using Form I-130. However and regrettably, he must then go outside the country to complete the process. This is because if he came here illegally, he would have to go outside the country to finish his visa processing even you get married to him. Unfortunately, once he goes outside the country, the 3-year and 10-year bar would kick in and he may not be able to get back in. So, unless there is a change in the U.S. Immigration laws, there is really NOTHING that you can do for him even if you get married now or even if you have a kid together because he must go outside the country to finish the Green Card process. Once he goes outside the country, he may not be able to come back in. This is the current law.

The 3-year and 10-year bars do not come into play until the Foreign National actually leaves the country. Overstay of more than 6 months but less than a year would trigger a 3-year bar if the Foreign National leaves the country. This means that the Foreign National may be barred from entering the country for three years. Overstay of a year or more would trigger the 10-year bar. This means that the Foreign National may be barred from entering the country for ten years. In this case, since your husband would have overstayed his Status by about six years, he may not be able to come back in for ten years if leaves the country.