I'm a USC married to a Mexican man who entered the U.S. illegally (without inspection) about 3 years ago. We married here in the U.S. and then filed the I-130. The first NOA date is March 6, 2003. We know that he will have to return to Mexico to have his interview, thus invoking the whole 10-year bar deal. We also know we will have to apply for the 601 waiver of the bar in order for him to be granted a visa and allowed to re-enter the U.S.

Here's what we don't know: Is it possible to apply for a K-3 visa and then the 601 waiver? We've been advised to just do the slow, traditional visa process because the K visa is riskier, but we're becoming more and more discouraged at the long wait time. At first we were thinking he could be back in the States a year from now, but now all indications are that it's going to take much longer that than. So we're trying to check out other options, mostly because we're both pushing 30 and dying to have a baby, but we don't want to do so until his immigration situation is settled.

Any advice would be greatly appreciated!

You and your husband are in a difficult situation – he’s stuck in a sort of gold-plated prison. The 10-year bar applies the moment your husband leaves the US, whether he applies for an immigrant visa or a K-3 visa. The processing time for an I-601 waiver in Mexico is approximately 1 year. Your husband would not be able to travel to the US during that time.

I presume that you also are considering the possibility of waiting to see if 245(i) is reinstated. Depending upon the conditions imposed by Congress if and when it is reinstated, your husband probably would then be able to apply for adjustment of status in the US. My gut feeling – and this is based on nothing more than my own personal feeling – is that 245(i) might be reinstated before next year’s elections.

If you would like to further discuss your husband’s case, please contact my office to arrange for a consultation.