If my husband leaves the US with an expired visa, how can I sponsor him to bring him back? 10 Answers as of October 24, 2011

If your husband has not left the United States after is visa expired, and barring any other negative factors such as crimes or removal (deportation) proceedings, he should be able to adjust his status while still here in the United States. If he leaves the United States, he may be subject to a bar on admission which would require an additional form called a "waiver" and which generally delays the process (and can sometimes prevent the process).

If he overstayed his visa by 180 days or more, he will need a waiver to come back.

Consider adjusting his status before he leaves.

Generally, there should not be any problem as students under F-1 visa do not accrue "unlawful presence" until USCIS or immigration judge say so. Make sure he does not have such "finding". If he did not apply for any immigration benefits or did not go to immigration court, he is fine. Therefore, even if he overstayed his student visa, he is not subject to the 3 or 10-year bar. You may file I-130 visa petition with the USCIS. Once approved, follow the instruction to complete the visa processing procedure and he will be asked to appear at US consulate for immigrant visa interview. Please note that this response to your question is very general. You must make sure there are no other issues, such as "student visa" abuser or unauthorized employment in the US, which will complicate the matter.

You husband may be eligible for adjustment of status. If he qualifies, then he would not be required to leave. If he is leaving for other reasons, then there are questions of whether he has accrued "unlawful presence". If he has, then his case processing will require a waiver, which adds to the overall processing time.

The key is to finish his paperwork before he leaves the US. The entire process only takes about 3 months.

If his status was not terminated, then he has not accrued unlawful presence. This means no 3/10 year bar. So you follow the same path as anyone else sponsoring a spouse abroad. It normally takes about 9-12 months for full processing. Please schedule full consult with a competent immigration attorney.

If your husband previously entered with a valid visa and complied with the terms of his visa, but for overstaying, you should consider seeking adjustment of status for him in the United States. You would file an immigrant visa petition for him and he would request to adjust his status to a lawful permanent resident. The fact that he overstayed will not bar him from becoming a lawful permanent resident unless there are other issues. However, if your husband departs from the country his prior illegal presence will trigger a bar to future admission. This bar is for either 3 or 10 years depending upon how long he overstayed. It can be waived, but only by demonstrating extreme hardship to you. It is in your best interests to meet with an attorney in person to discuss the matter. It may be in your husband's best interest to seek residence in the United States.

If you are a citizen, your husband can apply for permanent resident status without leaving the U.S. You should consult with an experienced immigration attorney before taking any steps.