Getting Married While Facing Removal in Immigration Court Proceedings

© 2010 by Peter J. Loughlin, Esq. and Thomas W. Goldman, Esq.

One form of relief available to respondents facing removal in immigration court may be adjustment of status based on marriage to a U.S. citizen.  Adjustment of status permits an admissible alien to obtain lawful permanent residence (i.e., a green card) without leaving the United States.

You should seek the advice of an immigration attorney in determining whether or not this will be a viable form of relief. Factors such as the nature of the allegation against you and/or other legal impediments may prevent you from pursuing this adjustment of status while in immigration court. For example, you would still need to meet the admissibility requirements for adjustment—or obtain a waiver.

When a respondent gets married during immigration court proceedings, his or her attorney will typically first file an I-130 with USCIS along with detailed evidence of the bona fides (good faith) of the relationship. This is particularly important since applicants who marry after the initiation of proceedings must prove the validity of the marriage by clear and convincing evidence because of the obvious suspicion that the marriage was entered into solely for the purpose of avoiding the immigration problems. *Never enter into a fraudulent or sham marriage.

According to INA 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.

Once the I-797C filing receipts are received back from the agency the immigration attorney should file a motion to continue the case along with proof of filing, copy of the I-130 and copies of the evidence supporting the bone fides of the relationship.  Incidentally the I-130 petition package should be filed by certified mail or other trackable courier service so that you can use the shipping receipt as evidence of filing in case the I-797C does not arrive in time for the hearing of filing of the motion.

Once the I-130 petition is approved and the I-485 and related applications have been properly filed, the immigration judge can adjudicate the respondent’s adjustment of status or, in the alternative, terminate the case for processing by USCIS.

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