Marriage before I485 filing to alien formerly unlawfully present in US for over 1yr?

[pmaaunlua]

I am currently in the process of obtaining a green card through my employer (I am originally from Bulgaria), at the stage where my I140 has a status of "Document OTHER THAN CARD manufactured and mailed". When my labor certification was approved, I fell into the EB3 category, and I am not yet eligible to file a form I485. My fiance, who I've been together with for 7 years (he is from India), was here on a F1 visa, and unfortunately he overstayed his visa by about 4.5 years and worked illegally, until he finally went back home last December. We both thought that there was no way for his situation to be fixed if he continued to stay here, and that it would be better for him to go back and reapply for a new visa there. The only reason why we didn’t get married until now is because we were afraid that his illegal status might jeopardize the approval of my green card. We never actually went to a lawyer to consult regarding this, and now that he is out of the country, I really regret it. Based on some research we have done, it appears that since he was illegal for over 1 year, he cannot be granted a visa for the period of 10 years after his departure. Is there any way to go around this rule? If we were to get married now, before my I485 has been filed/approved, are there any chances that he could get a green card together with me and could be allowed to come back here? Or should I wait to get my green card and then file for him, which we are aware will mean a wait of at least 5-6 years? Does anybody have any idea what to do with such a convoluted situation? Any help/suggestions are greatly appreciated!

 

[TheRealCanadian]

We never actually went to a lawyer to consult regarding this, and now that he is out of the country, I really regret it.

I'm quoting this because hopefully someone else may read it and not make the same mistake as your fiance. It never hurts to get a consultation.

Based on some research we have done, it appears that since he was illegal for over 1 year, he cannot be granted a visa for the period of 10 years after his departure.

That is correct. If he overstayed by over 365 days, then he cannot re-enter the US for 10 years.

Is there any way to go around this rule? If we were to get married now, before my I485 has been filed/approved, are there any chances that he could get a green card together with me and could be allowed to come back here?

You can get married now, but that's not going to change the reality of the 10-year re-entry bar. However, there is very little you could have done differently. In order for him to file an I-485 in the US if he married you and did not leave the US, you would have needed to have a priority date before May 2001, which you do not appear to have.

Or should I wait to get my green card and then file for him, which we are aware will mean a wait of at least 5-6 years?

It'll mean a wait of 10 years.

There are no easy solutions for you, unless you want to live together outside the US.

 

[pibadova]

Thanks for your response. How about if we get married prior to the filing of my I-485, and we then submit an I-601 Application of Waiver of Grounds of Inadmissibility for my fiance? Could that work out to where he could be granted the waiver and then we both could file the I-485 when my priority date becomes current? Do you think that stands any chance at all?