The process for adjustment of status varies greatly based on whether the person entered US legally (with inspection) or illegally (without inspection).
If your spouse came across the border and never interacted with a U.S. border agent, then he/she entered without inspection. If he/she entered through an immigration checkpoint on a temporary visa, and then overstayed, he/she still came here legally.
If your spouse entered US illegally (w/o inspection):
Your spouse cannot file for adjustment of status (I-485) within US, meaning he/she must leave US to her native country before applying. This puts you in a huge disadvantage. Having both spouses for moral support in front of the immigration officer during the interview is much better.
But most importantly, if she entered US illegally, then once she leaves, there is a 3-10 year bar on returning to US. To make sure that he/she is not stuck outside US, it is crucial to file I-601A (Application for Provisional Unlawful Presence Waiver). I-601A can be filed within US ($585 filing fee). Essentially, your spouse has to prove that he/she will suffer extreme hardship if USCIS denies the waiver.
I-601A application packet are difficult to prepare. It is recommended to hire an attorney to prepare your waiver packet. The US government requires evidence of hardship, including witness statement, employment and education records, medical documents, and other documents. The packet must also include a legal brief that will support the facts underlying the application establishing that the extreme hardship legal threshold has been met.
Once the I-601A waiver, the I-130, and I-485 are approved. He/she will safely leave US, without triggering the time bar, to meet with the immigration officer alone at the US consulate in his/her native country. But the trip will be short, just for the interview and to pick up the visa to reenter US.
Please call our office at 619-357-6677 to discuss your situation.
Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP.