Marriage and Adjustment of Status While in Immigration Court Proceedings

iStock_000000236782_L11-300x234Respondents facing removal in immigration court may be able to adjust status based on marriage to a U.S. citizen. Adjustment of status is a procedure that permits an admissible foreign national to obtain lawful permanent residence (i.e., a green card) without leaving the United States.

If you marry a US citizen after the commencement of removal proceedings you should seek the advice of an immigration attorney. We can help determine whether or not this will be a viable form of relief in your case. The marriage must be bona fide and other factors must be considered such as the nature of the allegation against you and if there are any legal impediments that would prevent you from adjusting of status. For instance, you would still need to meet the admissibility requirements for adjustment of status—or be eligible to be considered for a waiver.

If you legitimately marry a US citizen when you’re in immigration court proceedings and are otherwise eligible to adjust status, we typically first file an I-130 with USCIS along with documentary evidence of the valid marital relationship. This must be established in order to succeed because respondents who marry after immigration court proceedings begin must prove by clear and convincing evidence that the marriage not solely for the purpose of avoiding deportation and removal..

Pursuant to the Immigration and Naturalization Act § 204(g); 8 C.F.R. 204.2(a)(1)(iii), USCIS cannot approve an I-130 immediate relative petition without an exemption if the marriage occurs during the respondent’s exclusion, deportation or removal proceedings. For this reason, it is important for the applicant to specifically request a bona fide marriage exemption under INA § 245 (e) (3); 8 C.F.R. § 204.2 (a) (1) (iii) and § 245 (c) (8) (iii) – (v). While it is true that the agency may presume you are requesting the exemption, it is best to clearly indicate so in a cover letter in order to avoid delays in processing the case.

When the filing receipts for the I-130 petition are received by our office we would normally file with the court a motion to continue the proceedings and copies of the supporting documentation the validity of the marriage.

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You and your spouse will then be scheduled for a USCIS interview and if approved and the I-485 and related applications have been properly filed, the immigration judge can adjudicate the respondent’s adjustment of status. In some cases you may request that the judge terminate the case against you so that you may continue processing with USCIS.

Although filing for adjustment of status based on marriage may be a viable form of relief, never enter into a fraudulent or sham marriage—it’s illegal.