My husband has been here off and on since2001 , we met in 2003 and he has been here since,we married 2 months ago and have a child together now ,we had previously talked to an imm. attorney a year or so ago and he had explained the way this works and that due to my spouse being here illegally he will be subject to the 10 year ban and will have to go back to mexico pending a spouse waiver being filed on my part which may or may not be approved. So we waited ,now that we are married we would like for him to become legal ,since then i have talked to 2 other couples who have went throug immigration services and gotten thier spouses status changed to legal and did not have to go back to mexico ( they were illegal also) they have advised us to go to immigration and file for my spouse ,but i am scarred we wont be so lucky, So i guess my question is ,did they just get luky or through some crack by not having to go back to thier country to adjust status ,or has something changed in the law that i am not aware of . What would be our best plan of action at this point ,try going ourselves as they did and hope to be as lucky or wait for new laws to be passed , Any advise as i am sure you all know who are going through this is so greatly apriciated .

There's no "luck" when it comes to dealing with the CIS. One question determines whether he will have to go back to Mexico or he can adjust status while in the U.S. The question is: did he enter the U.S. inspected by an immigration official or not. That simple. Being inspected means that upon entry an immigration official examined his travel document like a visa, I-94 for Visa Waiver, border crossing card and determined the length of authorized stay in the U.S.

A person can be "illegal" in two ways: One, entered inspected and overstayed authorized stay. Two, entered illegally (hopped the fence) and stays illegal. In the first case illegal overstay is pardoned by the CIS if illegal gets married to a USC then he can adjust status while in the U.S. In second illegal must return to his home country and go through consular processing. If illegal presence was over 6 months upon leaving the country illegal is banned for 3 years. Overstaying for over a year makes one inadmissible for 10 years.

To overcome inadmissibility there's a waiver form I-601. But it's the whole different topic. There's a good website with people who go through filing this waiver: www.immigrate2us.net

Cheers.