I encourage you to keep going to Attorney consultations as needed to stay updated on the immigration changes that are up and coming as they in all likelihood would apply to you. Make sure to go to one that you feel comfortable with and don't hesitate to get a second opinion if you feel you need to. Additionally, I would not be able to offer advice on any other immigration benefits that may be out there for you that you may be able to apply for unless I have a comprehensive file regarding your situation in my office.

The federal government is working on a "waiver" (o perdón) under a form number I-601, where, if you can prove hardship to you and your family, you can remain in the U.S. and not have to leave for Mexico while the government analyzes your waiver. IF the waiver is granted, though, you will have to come out, go to the U.S. consulate in Mexico, get your proper entry documents and come back to the U.S.

The difference is that before you had to come out for a very long period of time and now, once this is implemented, it should be for a brief period of time.

It may be implemented after June 2012. You can go on the U.S.C.I.S. website and make comments on this process, which the government is asking people to do.

You may want to collect all evidence of hardship you may want to present with your waiver, since it is important AND you do not want to do this by yourself, since it is very complicated. You may want to obtain the help of a lawyer of your choice. Do not give it to a paralegal, since they may mess up your case. This form may look very "simple" to complete, but the information and evidence which accompanies it is complex.

Alejandro R. Lopez, Esq.
Law Office of Alejandro R. Lopez, P.A.
4465 Edgewater Dr.,
Suite A,
Orlando, Fla. 32804
(407) 649-1404
E-mail: ALopez2827@gmail.com

Unfortunately there is nothing you could do (since you don't wish to follow the cancellation or consular processing route). Now IF the latese USCIS proposal becomes a reality you have a good chance to qualify. This proposal will allow persons in your situation obtain waivers WITHOUT leaving the US. Consult with an experienced immigration attorney and KEEP UPDATED with the latest immigration news.
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I agree with Ms. Mulder. I would add that the proposed stateside waiver processing would still require you to leave in order to obtain your visa, you would just leave with an approved waiver so you could be approved and come back. I would also add that if your I-130 was approved 5 years ago it may no longer be considered valid by USCIS.

Cancellation of removal does not require you to leave the US, but it does require you to be in removal proceedings, which you are not, and it requires you to have 10 years of physical presence in the US (you don't say how long you've been here).

I'm afraid that based on your situation, there may not be another way for you to adjust your status without having to leave the US for at least a visa interview. You should ask your wife and any other US citizens you know to contact their elected officials and ask them to support comprehensive immigration reform that would allow people in your situation to obtain legal status. I'm attaching a link you can use to contact Congress.

Generally, a person who entered the country illegally and is here without proper immigration status must return to his/her home country to file an immigrant visa petition to be able to return to the United States. The problem is, once he/she leaves the country, he/she faces an automatic unlawful presence bar of inadmissibility of 3 or 10 years before they can return (3 years if he/she had been in the U.S. less than 6 months and left voluntarily, 10 years if in the U.S. more than a year).
One exception to this is if the foreign national was the beneficiary of a labor certification application, or immigrant visa petition for an alien relative (I-130) or immigrant petition for alien worker (I-140). In this case, he/she may file for an adjustment of status under INA § 245(i) to remain in the country for the processing of the visa petition. This law, which is no longer in effect (but petitioners who fit within the criteria are still grandfathered into the process), allowed for the payment of a $1,000 fine to waive the unlawful presence bar. The requirements are that the foreign national is the beneficiary of the qualifying immigrant or labor certification petition filed on or before April 30, 2001; that if the foreign national was the principal beneficiary, that he/she was physically present in the U.S. on December 21, 2000; that the foreign national has a visa immediately available to him/her and he/she is admissible to the U.S; and the foreign national must pay an additional $1000 fee.
In the case that a 3 or 10 year bar is applicable, the immigrant may file an I-601 extreme hardship waiver to eliminate the unlawful presence bar to returning to the U.S., but the time it takes for DHS to process these petitions can take weeks, months, or even years, and the person must remain in their home country until the waiver is approved. In deciding what qualifies as extreme hardship, the DHS official will consider: 1) the presence of LPR or USC family ties to the U.S.; 2) the qualifying relative's family ties outside the U.S.; 3) the country conditions in the country of relocation and the qualifying relative's ties to that country; 4) the financial impact of departure from the U.S.; and, 5) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation. They may also consider factors such as the impact of separation; the economic and other conditions in the country to which she will accompany her spouse or parent; the financial, emotional, cultural, and political conditions in that country and her ability to raise children and other quality of life factors, like health and employability.

A new development, that has not gone into effect yet, is the Obama Administration’s announcement of changes to this process that will allow certain immediate family members to remain in the U.S. while their extreme hardship waivers are being processed, and only have to return to their home country for an interview and visa processing. In order to be eligible for this waiver, though, the foreign national must be an immediate relative of a U.S. Citizen (not a lawful permanent resident) and there must be extreme hardship to qualifying relatives who are U.S. Citizens if a person has to leave the country for the processing of their petition. The considerations for extreme hardship under this new announcement are the same as the I-601 extreme hardship waiver considerations.

It sounds like you have been advised before of the relief available to you. Currently being considered it a new petition to allow persons like yourself to remain in the USA while a waiver is being processed:

The proposed changes in the processing of the I-601 Waiver will significantly reduce the time that United States Citizens and Permanent Residents are separated from immediate relatives. In some cases the immediate relative may remain in the United States while the waiver is being processed.

1

Excerpt from the USCIS March 30th, 2012, Press Release

...This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship... USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa...

2

Who will Benefit from the Proposed Change:

The proposed change will benefit United States citizens and their immediate relatives. The proposal does not suggest that it will affect the permanent resident or his immediate relatives. The proposed change will benefit the United States citizen and his immediate relatives who are inadmissible to the United States as a result of unlawful presence. The proposed change will not benefit persons who are inadmissible because they were convicted of a crime. The proposed change is silent on the issue of entering the United States without inspection. As the law currently reads, entering without inspection is a seperate and distinct violation and requires a stand alone waiver. The current proposal does not appear to provide relief to immediate relatives who have entered the United States without inspection but appears to apply only to those who have entered the United States with inspection and overstayed.

Additional Resources

WWW.MULDERLAWOFFICE.com

Kyndra L Mulder, Esquire
The Mulder Law Office, P.A.
4110 Southpoint Boulevard, Suite 101
Jacksonville, Florida 32216

Telephone: (904) 296-7702 (386) 283-5579
Fax: (904) 281-9108
Email: Immigration@MulderLawOffice.com

http://www.uscis.gov/provisionalwaiver.
www.regulations.gov
www.uscis.gov