The short answer is what you have heard is correct. The long answer is there are other means to deal with the situation you are in if you are flexible. I am dealing with the same issue myself and would be happy to discuss this with you and your wife.

Yes, she will have to go to El Salvador to apply for an Immigrant visa.

No, not always a person in similar situation is required to stay 10 years abroad. If she applies for a waiver and it's approved, she can come back to USA as a lawful permanent resident as soon as a waiver is approved and visa is issued.

I am afraid that her Aunt can't file a I-130 for her niece. It's simply not allowed by law. Aunt could have filed for her niece's mother or father (her sister or brother), however, if a niece is now married to you, that old petition filed in 2002 has no relevance on her situation.

If you’d like to schedule a confidential telephone or email legal consultation, or need advice or help, please let me know, and I’d be glad to help you: Attorney [@] law-visa-usa.com or LubaSmal [@] yahoo.com . I offer legal consultations and assist clients from all States, as this is the matter of U.S. federal law.

Note: The above response is provided for legal information purposes only and should not be considered as legal advice. This response doesn’t create an attorney-client relationship, which can only be established through payment of a fee. If you request a follow-up confidential advice on your specific situation and regarding U.S.A. immigration-related issues, we can offer a paid consultation by telephone or email to clients from all States and globally. Please visit our website http://www.law-visa-usa.com/contact_us.html for more details. Our contact email address is Attorney [@] law-visa-USA.com

There are options for spouses of US Citizens (USC). Since your wife entered without inspection (EWI), unless she's been the beneficiary of a previous petition or the law changes, her option will be to depart the U.S. after the filing of a petition for her as the spouse of a USC. This will involve her applying for an immigrant visa at the U.S. consulate in her home country and also seeking a hardship waiver (due to the hardship you will face without her), and other factors if they arise.

Based on your information, your wife doesn't currently qualify for a form of amnesty called 245(i). This required that a family or employment petition be filed before April 30, 2001.

So, depending on the type of hardship you would face, her only option right now would be to seek a waiver of inadmissibility based on extreme hardship to a U.S. citizen spouse, parent, or child over 21.

Note, most out-of-state attorneys can legally help you because we are permitted to practice federal immigration law outside of our state of jurisdiction. Please feel free to contact me for a free initial consultation.

Sincerely,

Michael A. Harris, Esq.

Associate Attorney

LAW OFFICES OF

KRAVITZ & GUERRA, P.A.

800 Brickell Avenue, Suite 701, Miami, Florida 33131

Please view my contact information for more information about my professional background.

Since your wife came to the US without inspection and does not have 245 (i) protection, she might not apply for green card in the US and she is subject to 10-year bar.

She needs an approved I-601 waiver before she gets the immigrant visa oversea.

We suggest you to consult with an immigration attorney.

You may visit our website at www.medinalawgroup.net. Our telephone number is 714-786-6835 and email is contact@medinalawgroup.net. Thank you.

The above reply is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site does not create an attorney-client relationship.

First of all, your wife's aunt cannot help her. It takes a near relative to act as a petitioner-sponsor of a family-based petition for legal permanent residency (husband/wife, minor child, parent, brother/sister). You are able to act as her sponsor, but her entry into the country eliminates her as able to apply without a hardship waiver. Remaining in the U.S. for more than a year subjects her to a ten-year ban, and bars her from even applying for legal entry into the U.S. for even a tourist visa. The straight-line statement of the law is that she would have to leave the country, wait for you to file a petition for a visa with an I-130, file an adjustment of status request, and then apply for a hardship waiver (I-601), with the hardship being yours, not hers.

However, there are options for the two of you. First of all, I would want to know about why her aunt filed for her in the first place. Did she by any chance adopt her? If so, that is a possible option, depending upon your wife's age at the time. You could apply for her and proceed with a combination I-485/I-601, based upon a recognized likely ineligibility for her, and a possible hardship for you (the hardship has to be yours). If the government is so willing to grant the I-601, you could accompany her to the consular processing interview in her country of origin.

At any rate, an immigration attorney could be of help. You may contact my office at (323) 244-9021, and my e-mail is fj.fernandez@gmail.com .