Legal Question in Immigration Law in Texas

He can only leave the country if he has a greencard or advance parole. If you have not petitioned him yet, then he should not leave the country or he may not be re-admitted & it also could be construed as visa fraud.

YOU WILL NEED A QUALIFIED IMMIGRATION ATTORNEY TO ASSIST YOU - WHETHER HE STAYS IN THE US OR DECIDES TO GO BACK TO HIS HOME COUNTRY.

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Your husband's return will depend on WHEN he entered the US, and how long he has been in the US in illegal presence.

It will also depend on whether or not you are a US Citizen, because this one of the few classifications where an immediate visa would be available to him, and waivers would be available to him, if he was in illegal presence and then, left and wanted to return.

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Generally:

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If he was in the US, in illegal presence for less than 6-months (and this will depend on his type of entry), he will NOT have a bar, but YOU will need to be a US Citizen in order to have an immediate visa available for him to return and you will need to hire an immigration attorney to prepare and file a spousal Petition with USCIS and have it approved, and then, once it is approved, the attorney will need to assist your husband in the US consular processing part of the application before he can get his visa and return to the US. And, before his visa is approved by the US consulate, he will need to go through a medical exam and other consulate requirements including an interview and an explanation as to why he did not return to his home country, and why he over-stayed.

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Next, if he has been in the US, in illegal presence for 6 months and up to one-year, and if he leaves the US, he will be barred from being able to return to the US for 3 years, and if he wants to return sooner, the attorney will need to prepare and file a hardship waiver and have it approved before your husband can go through consular processing and this waiver will need to be filed with your spousal Petition as stated above, as well as with the US consulate, and your husband will need to wait in his home country for the waiver to be approved, before they will allow him to begin the consular processing part of his application so that he can return.

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It goes on from there. For example if he over-stayed in illegal presence for more than a year, then, he will be barred for 10-years from returning to the US, and you will again, need to file the Petition and the hardship waiver will need to be approved, before he can come back to the US sooner, and this process can take years.

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In summary, he may be able to return, but it will depend on the length of time he over-stayed and you will need to file a Petition and have it approved in order for him to return and you will probably need a hardship waiver filed and approved in order for him to return, and depending on how long he over-stayed, he will need to wait in his home country until the Petitions and Applications and waivers are filed with USCIS and are approved and are filed with the US consulate and until his consular processing in his home country is complete - and all of this will take well over a year to complete, and possibly more. It is a complex process and you will need to consult with an attorney so that they can understand the totality of your case, and determine the best method in order to assist you.

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Lastly, before he leaves, and based on what you provided, I would retain a qualified immigration attorney to adjust your husband's status in the US before he decides to leave the US (country), as this process, if done in the US, and if the attorney is experienced and can file all petitions, applications and evidence required up front, will take about 6 to 8 months for him to get an EAD / Parole, and in my experience, his conditional or 10-year green card, so that he can leave the US and be able to return legally with no hick-ups.

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Goldstein & Scopellite, PC has qualified Immigration attorneys, Deportation and Removal lawyers and Immigration Appellate attorneys available to represent you at either one of their law offices located in Dallas, Texas and Tucson, Arizona - Please visit their websites at www.LawyersDallas.com and www.Lawyers-Tucson.com for more information or to contact them. Thank you.