What's involved with marrying a foreign national who it turns out is in the United States without any type of visa?

Lets say a US citizen wanted to marry a Chinese national already living in the US (presumably illegally - no visa).

1) Without a valid visa, could the marriage even take place in the US?
2) To straighten-out the immigartion status, what course of action might be taken?

Would the Chinese national maybe need to be returned to China to then await approval of a proper visa, so she can then return legally into the US?

Any thoughts appreciated.

Yes; a valid marriage does not require a visa.  After all, the couple could marry in Canada and the U.S. would recognize that as a valid marriage.

The next question is tougher.  I think (but not certain) I would apply for asylum on one of the human rights grounds available if appropriate.  Concurrently, I'd apply for residency based on the marital status.  Asylum takes a fairly long time to complete: application, hearing, trial (if denied) and appeal.  That's a couple of years during which time, the marital status application is in process, you get smarter and laws change.  If there are children at that point, there is the family reunification angle and picture throwing Mom out of the country with hubby and baby at the airport.  The media would love that one.

I was under the impression that the asylum process was revamped
recently (a few years back).  It used to be, most people
applied for asylum even if they had another application pending
so that they can get a work permit while waiting for their
"real" application to come through.  I have heard that the
INS has clamped down on asylum seekers and "streamlined"
the asylum process such that you dont have as much time as
you used to.  They might have even cut back your chances
for appeal.  Once you are rejected, you go in front of a
judge immediately, and if they dont think you have a case,
you will be deported.

PS: I'm not a lawyer, all the info above is from a co-worker
who went through the asylum process.  I would highly recommend
that you consult a professional.

Best of Luck to you,
AliBabaSD

Your best bet is to consult an immigration lawyer. This country has really changed post 9/11. USINS doesn't even exist anymore.
I don't believe your chances of marrying a person here in the US illegally, are very good at all. Go to the STATE DEPARTMENT website for a condensed answer to your question. All immigration matters have been absorbed into the new Homeland Security Dept.
Best of luck to you!

Read my 1st reply again.  The marriage is valid.  It is unrelated to visa, residency or anything else.

Now I have done asylum law until as recently as 18 months ago, including immigration court trials.  One's chances for an appeal are not diminished; one's chances of prevailing on the merits may have been reduced (they were never high) but an appeal is a right which remains a right.

You are correct as to the need for an immigration lawyer; not me as I dropped it as of Sept. 12, 2001.

Q: "What's involved with marrying a foreign national who it turns out is in the United States without any type of visa?"

A:  This depends on the critical issue of whether the person entered the US with inspection (ie, did not jump the Canadian or Mexican border).  If the person flew to Canada or Mexico and drove thru the border without inspection (ie, no visa or stamps in passport and no I-94 card) then marrying a U.S. citizen will not help that person in obtaining a "greencard" here.  However, if the border jumper was the beneficiary of an immigrant petition that was filed on or before April 2001, then that person may apply for a greencard here by paying a $1000 penalty.

On the other hand, if the person did enter the US with inspection, meaning they have a visa in the passport and received a stamped I-94 card, and simply stayed in the US longer than the expiration date on the I-94 and perhaps worked without authorization, then marrying a US citizen will lead to a greencard, absent any negative factors or other issues of inadmissability.  

Q:  "Lets say a US citizen wanted to marry a Chinese national already living in the US (presumably illegally - no visa).

1) Without a valid visa, could the marriage even take place in the US?"

A:  Yes, a visa is not required for a valid marriage in the US.

Q:  "2) To straighten-out the immigartion status, what course of action might be taken?

Would the Chinese national maybe need to be returned to China to then await approval of a proper visa, so she can then return legally into the US?"

A:  If the person is married to a US citizen, then that US citizen may immediately begin the greencard process for their spouse.  The person does not have to leave the country...in fact, I would strongly advise against leaving the country because of the penalty known as the 3/10 bar.  The 3/10 bar is triggered when a person leaves the U.S. such that if the person overstayed more than 6 months and less than 1 year AND leaves the US, then that person cannot return to the US for 3 years.  Likewise, if the person overstayed more than 1 year AND leaves the US, then that person cannot return to the US for 10 years.  Note the key factor is the person's departure from the US.  My clients in similar situations usually receive their greencard status within 6 to 9 months of filing.

OTHER IMPORTANT CONSIDERATIONS:

If the Chinese national is a prostitute, and has any arrest records for being a prostitute, this may cause their greencard application to be denied. For this reason, I would perform an FBI criminal background check on the applicant to make sure their record is clean BEFORE applying.

Further, please note that the BCIS (formerly INS) presumes every marriage that is less than 2 years old at the time of filing for the greencard to be a sham/fraud marriage.  Hence, the applicant has the burden of proof in demonstrating that the marriage is bona fide and was not entered into solely for the purpose of getting a greencard.  It is not that difficult proving to the BCIS that the marriage is real and bona fide, however, it must be done in a very particular way.  


LEGAL DISCLAIMER:  The information provided in this post is for general informational purposes only and should not be relied upon as legal advice.  If you have any questions, please consult an attorney, or you may contact me for a free consultation.

Thanks loads!
That certainly provides a lot of insights.
Right now it's just an "idea".
I'll certainly be consulting counsel before making any moves.