Actually, your spouse can petition you no matter what. But that is not the whole story or even the whole question! A family petition is just that, a petition and it does not grant legal status. What grants legal status is an application for Lawful Permanent Residence or an Application for an Immigrant Visa at a United States Consulate overseas. If a beneficiary of a spousal petition last entered the United States illegally, and has remained in the United States for more than six months, he or she must leave the country to apply for an Immigrant Visa at a Consulate overseas. There are some exceptions to this rule (of course—this is the immigration law!!). In most cases, the Beneficiary must also apply for a Waiver of Inadmissibility for his or her Unlawful Presence in the United States. Driggs Immigration Law has a lot of experience getting these types of waivers approved. Call us at the beginning of the process to make sure your chances of being successful are greatly increased.