edgini

If you did not have plans to marry and stay here when your wife entered the US, then you can adjust her status. However, you must understand some things.
1. She did NOT enter with a visa. She entered on the Visa Waiver Program (VWP), which for this purpose is entirely different than a visa. Since she did enter on the VWP, then if your adjustment is denied, there is no recourse for going to court and arguing about it. She signed away her rights to a trial when she entered on the VWP.
2. You can adjust status on the VWP if you get the paperwork accepted before her 90 days are up. You will fill out a CONCURRENT I-130/I-485. The guide is here:
http://www.visajourney.com/content/i130guide2 It costs now $420 + $1070, plus the medical.
3. If you do not get the paperwork accepted before the 90 days are up (not just received in the post box, but initially accepted for review and checks cashed) then you risk an automatic denial simply based on the fact that she overstayed. Getting it initially accepted takes usually 5 business days from when it is received, but it can take more, and it can also be rejected for something as small as forgetting to sign a form. Normally, you can just resend, but for your case, it might mean the difference between in-status and overstay. For people that entered with a visa, an overstay is irrelevant for spousal petitions, but it IS relevant for VWP.
Some offices are reading the law differently and deciding (based on some court cases) that people who overstay the VWP are not eligible to adjust status. They are choosing to deny petitions and order a deportation, which comes with a 10-year ban. If you are in NY, I think you may be lucky. I don't think they are one of the districts that are immediately denying overstay VWP people, but I am not sure and I wouldn't risk your future on a "hunch" from a stranger online!
Read this article:
http://www.nytimes.com/2010/05/15/nyregion/15visa.html
A lawyer can't change what is going on with the VWP overstays, so I don't think one would help much.
Let me sum up that you really need to get your paperwork accepted before the 90 day deadline... then you can sleep (relatively) easy... there is still a chance for denial if they think your marriage is fraudulent, but if it is real, then I wouldn't worry about that much.
Once you get the papers initially accepted, she cannot leave the country for about 3 months. If she leaves, she will abandon this application. She must wait here until she gets a temporary travel permission, called advance parole, or the greencard itself, which is a permanent travel permission in itself (although with some restrictions you can read later).
Hurry up and get that paperwork sent in!! Tomorrow!
Congrats on your marriage!

My 2 cents here... While I didnt have a 3 year ban, due to circumstances beyond our control (money, bad attorneys, a baby and so on and so forth) it took 3.5 years from beginning to end on my process. It was a long 3.5 years, and it was hard, but my husband was well worth the wait. I stayed in Canada and he stayed in the US, we met in the middle about once a year.
IMO... take the 3 year ban, and apply for CR1. In fact, get married, and by the time your ban is up, you will no long have a conditional greencard, you will have a 10year greencard, and only 3 years to wait after that for citizenship. When it comes up at your interview, you can also take the high ground and explain to the CO, that you realised you were going about things the wrong way and chose to correct it on your own before ICE caught up with you and you were deported.
Take my word for it, 3.5 years go by quickly when you are working on being with the person you love. It had its tough moments, but true love conquers all!!
You know whats right, I trust you will make the right decision on your own. Your girlfriend/fiance and future are well worth it.

Some good advice in this thread that I can also apply to my case. Thanks all..
You will have a very hard time dealing with the US immigration process and are looking at a few years of extreme frustration and non-belief if you decide to go for it. If you decide to pursue the option of trying to stay in the US, drop all common sense that you may have and learn to think like a government robot. Remember the entrepreneurial spirit is not shared by USCIS.

The intention of the language in INA 212(a)(9)(B) is that you are barred only for 3 years if your overstay is between 180 days and 1 year, and if you leave voluntarily before removal proceedings have begun. It was never meant to imply that you can avoid the bar if removal proceedings are started while you're within the 6 month window, and then skip out on the removal proceedings, and I've never heard of USCIS interpreting it this way.
By the way, failure to appear for a removal hearing results in a FIVE year bar. Out of the frying pan and into the fire, so to speak.
If you really wanted to test that theory, you'd have to find a way to get USCIS to start removal proceedings while you're inside that six month window. Here's the problem - you entered using the VWP. If USCIS decides to remove you then there will BE NO REMOVAL PROCEEDINGS. The "no contest" clause means you are immediately deportable upon the order of any immigration officer. This is effectively the same as if an immigration judge had already ordered your deportation. The decision of the immigration officer is not subject to review or appeal. Instead of USCIS starting removal proceedings, you would be taken into custody and immediately deported. You would never get a hearing in front of an immigration judge.
You've earned the 3 year bar. An I-601 hardship waiver is the only way around it. If you play Russian roulette with deportation then you'll get a 10 year ban, and need an I-212 waiver as well.
The 3 year bar makes you inadmissible. You can't receive any sort of visa during the bar unless you receive a waiver. An investors visa would be no different.
You can't get a waiver unless you're an immediate relative of a US citizen. You apparently are not, but if you were then it might be possible to get the bar lifted while you're still in the US. An I-601 waiver request can be filed with an adjustment of status petition. Most in-country I-601's are denied.