Adjustment of status is a process available to certain individuals facing removal proceedings in immigration court who may be eligible to obtain lawful permanent residence (commonly known as a green card) based on their marriage to a U.S. citizen. This procedure allows foreign nationals who are already in the United States and are admissible to change their immigration status without the need to leave the country.
When an individual is in removal proceedings, they are typically facing the possibility of being deported from the United States. However, if the person is married to a U.S. citizen and meets the eligibility criteria for adjustment of status, they may be able to obtain a green card and legally remain in the country.
Seek Help of Attorney
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.
Bona Fide Marriage
Marriage While in Removal Proceedings? A bona fide marriage, also known as a genuine marriage or a marriage entered into in good faith, refers to a legally valid and legitimate marriage that is not entered into for the purpose of evading immigration laws. In the context of immigration, a bona fide marriage is one where the couple intends to establish a life together as spouses, based on love, commitment, and shared responsibilities.
When an individual seeks to obtain immigration benefits through marriage to a U.S. citizen or lawful permanent resident, the government scrutinizes the authenticity of the marriage to prevent fraudulent or sham marriages. USCIS (U.S. Citizenship and Immigration Services) assesses the bona fides or genuineness of the marriage by evaluating various factors,
Including
- Evidence of a shared life: This includes joint financial accounts, joint property ownership, joint leases or mortgages, and joint utility bills.
- Documentation of the marital relationship: This can include photographs of the couple together, affidavits from friends and family who can vouch for the authenticity of the marriage, and evidence of joint activities and trips.
- Emotional and physical commitment: Demonstrating that the couple genuinely loves each other and shares emotional and physical intimacy is crucial.
- Knowledge of each other: USCIS may interview the couple separately to assess their knowledge of each other’s personal history, background, family, and other important details.
- Cohabitation: Living together as a married couple is a significant factor in establishing the bona fides of the marriage.
Filing I-130 Form: First Step
When individuals in immigration court proceedings seek to adjust their immigration status by marrying a U.S. citizen, they must ensure that the marriage is genuine and not solely for immigration benefits. The process typically involves filing an I-130 petition with USCIS, accompanied by supporting documentary evidence of the valid marital relationship. This evidence is crucial to establish that the marriage is authentic and not a sham. However, if the marriage takes place after the immigration court proceedings begin, the burden of proof increases, and the couple must provide clear and convincing evidence that the marriage is not solely for the purpose of avoiding deportation.
Put Bona Fide Marriage Exemption Letter With I-130
According to the Immigration and Naturalization Act and corresponding regulations, specifically § 204(g) and 8 C.F.R. 204.2(a)(1)(iii), the United States Citizenship and Immigration Services (USCIS) is prohibited from approving such a petition if the marriage takes place while the person in question is undergoing exclusion, deportation, or removal proceedings. To overcome this restriction, the applicant must request a bona fide marriage exemption under INA § 245(e)(3) and 8 C.F.R. § 204.2(a)(1)(iii) and § 245(c)(8)(iii)-(v). Although the agency might assume that the exemption is being sought, it is advised to clearly state this intention in a cover letter to prevent any delays in processing the case.
When We Receive Receipt Of I-130 Submission
Upon receiving the filing receipts for the I-130 petition, the office in question typically takes the necessary steps to continue the legal proceedings. This involves submitting a formal motion to the court, requesting the proceedings to be extended or carried forward. Additionally, copies of supporting documentation are provided to the court as evidence to establish the legitimacy or validity of the marriage in question. These documents serve to strengthen the case and provide relevant information to the court for further consideration.
When I-130 Is Approved
After filing the necessary applications, you and your spouse will be scheduled for an interview with the United States Citizenship and Immigration Services (USCIS). During this interview, if your application is approved and all the required forms, including the I-485, have been correctly submitted, an immigration judge can make a decision regarding your adjustment of status.
This means that the judge can determine whether you are eligible to change your immigration status from, for example, a temporary visa holder to a lawful permanent resident (green card holder). In certain situations, it may be possible for you to request that the judge dismiss the case against you, allowing you to continue the processing of your application with USCIS.
I-601A Waiver
The purpose of the I-601A waiver is to provide a way for immediate relatives of U.S. citizens, specifically spouses and parents, to request a waiver for the unlawful presence bar before leaving the United States for their immigrant visa interviews at a U.S. embassy or consulate in their home country. The waiver is intended to waive the three- or ten-year bar that is triggered when someone has been unlawfully present in the U.S. for a certain period and then departs the country.
Eligibility For Waiver
To be eligible for the I-601A waiver, the applicant must demonstrate that their U.S. citizen spouse or parent would suffer extreme hardship if the applicant is not allowed to return to the United States. Extreme hardship is a high standard and requires showing that the U.S. citizen relative would face exceptional and unusual hardships if separated from the applicant.
If the I-601A waiver is approved, it allows the applicant to attend their immigrant visa interview abroad with the confidence that they have already been granted a waiver for their unlawful presence. However, it’s important to note that the waiver only addresses the unlawful presence bar and does not guarantee approval of the immigrant visa.
Overall, the I-601A waiver serves as an opportunity for eligible individuals to seek forgiveness for their unlawful presence and potentially reunite with their U.S. citizen family members in the United States.
Do I need to Use This Waiver When I Am claiming Asylum?
No, the I-601A waiver is not applicable when claiming asylum in the United States. The I-601A waiver, also known as the Provisional Unlawful Presence Waiver, is used to request a waiver of the unlawful presence grounds of inadmissibility for certain individuals who are seeking an immigrant visa based on family sponsorship.
Asylum and I-601A Waiver
Asylum is a different legal process that involves seeking protection in the United States due to fear of persecution in your home country. It is not related to family sponsorship or the unlawful presence waiver. When claiming asylum, you will need to follow the specific procedures outlined by the U.S. Citizenship and Immigration Services (USCIS) or the immigration court, depending on your circumstances.
If you have concerns or questions about your asylum claim, it is recommended to consult with an immigration attorney or a qualified legal professional who can provide guidance based on your specific situation. They will be able to offer you the most accurate and up-to-date information regarding your asylum application.
Summary
Adjustment of status is a process available to certain individuals who are in removal proceedings in immigration court and are eligible to obtain lawful permanent residence (green card) based on their marriage to a U.S. citizen. This process allows individuals who are already in the United States and admissible to change their immigration status without having to leave the country.
A bona fide marriage is a legally valid and legitimate marriage entered into in good faith, not for the purpose of evading immigration laws. USCIS evaluates the authenticity of the marriage by considering evidence of a shared life, documentation of the marital relationship, emotional and physical commitment, knowledge of each other, and cohabitation.
The process typically involves filing an I-130 petition to establish the validity of the marriage. If the marriage occurs after removal proceedings begin, the burden of proof is higher, requiring clear and convincing evidence that the marriage is not solely for immigration benefits.
Once the I-130 petition is approved, an interview with USCIS is scheduled. If the application is approved and all required forms, including the I-485, are submitted correctly, an immigration judge can make a decision on the adjustment of status. In some cases, it may be possible to request the dismissal of the removal proceedings to continue processing the application with USCIS.
The I-601A waiver, which waives the unlawful presence bar, is not applicable when claiming asylum in the United States. Asylum is a separate legal process based on seeking protection due to fear of persecution in one’s home country. If you have concerns about an asylum claim, it is advisable to consult with an immigration attorney for specific guidance based on your situation.
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