In Removal Proceedings: Who Can Apply for Adjustment of Status Based on Family?

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If you are an undocumented immigrant, and have been arrested or otherwise placed in removal (deportation) proceedings, applying for a green card through a family member might be the last thing you’d think you would be eligible for. After all, if you were qualified for a green card, wouldn’t you have applied for it already?

Nevertheless, it sometimes happens that an undocumented (sometimes called “illegal”) immigrant is eligible to apply to adjust status through a U.S. citizen or permanent resident family member regardless of having been placed in removal proceedings. The usual reasons include that the person didn’t previously realize that he or she was eligible for a green card, or the timing just happened to work out so that his or her eligibility (perhaps due to a recent marriage or current “priority date”) coincided with an arrest by U.S. immigration authorities. 

What It Means to Adjust Status in the U.S.

Adjustment of status is the process of applying for lawful permanent resident (LPR) status when you are in the U.S. already. In literal terms, it is an application procedure. (People who are still living in other countries while they complete the U.S. immigration procedures usually use a different procedure, called “consular processing.”)

So, before you even think about whether you’re eligible to adjust status, you need to find out whether you meet the underlying eligibility criteria for a green card based on family or marriage. See “Green Card Qualification” for more information. 

The adjustment of status application procedure is available only if the undocumented immigrant meets certain requirements, including:

  1. having made a lawful entry to the U.S. (unless the immigrant is covered by Section 245(i) of the I.N.A., discussed below)
  2. being admissible (as opposed to “inadmissible,” which is described in the article, “Inadmissibility: When the U.S. Can Keep You Out
  3. having a relative who is an LPR or U.S. citizen
  4. having had a visa petition approved on your behalf by U.S. Citizenship and Immigration Services (USCIS), which was presumably filed by the U.S. relative (when talking about visa petitions, your relative is called the “petitioner” and you are the “beneficiary” -- see “The Visa Petition: The First Step for Family and Employment Green Cards” for more on this topic)
  5. having an immediately available visa number (meaning that an applicant who is not an “immediate relative” has waited in line until his or her priority date has become current, as described in “How Long Is the Wait for Your Priority Date to Become Current?”; and
  6. not having violated his or her immigration status (for example, by working without authorization); unless exceptions apply (e.g. the immigrant is covered by Section 245(i) of the I.N.A., discussed below).

For each of these requirements, special rules and exceptions apply. For example, the requirement that the undocumented immigrant not have violated immigration status does not apply if the only violation was “unauthorized employment” and the immigrant is married to a U.S. citizen who filed the visa petition. For information about other special rules and exceptions when applying for adjustment of status, consult an attorney.

Adjustment of Status Under I.N.A. Section 245(i)

If you are an undocumented immigrant and did not enter the U.S. lawfully (that is, with inspection or permission by a U.S. government official) or you otherwise violated your immigration status, you may still be able to adjust status under an old section of the immigration laws called Section 245(i).

Here’s how it works. You can adjust status under Section 245(i) if you are either the beneficiary of

  • a visa petition or labor certification that was submitted to either USCIS or the Department of Labor (as appropriate) on or before April 30, 2001, or

  • a visa petition or labor certification that was filed between January 14, 1998 and April 30, 2001 AND you can also prove that you were physically present in the U.S. on December 21, 2000.

Any such visa petition or labor certification must have either been approved or been “approvable when filed.” Approvable when filed means, in general, that the petition was valid, not fraudulent, and the relevant relationship actually existed when the petition was filed.

Special Procedures for Adjusting Status in Removal Proceedings

Outside of removal proceedings, it is USCIS that ordinarily processes adjustment of status applications, from people who apply on their own initiative. However, when an undocumented immigrant applies for adjustment before an immigration judge, USCIS is responsible only for processing and making a decision on the “Petition for Alien Relative” (Form I-130), which is filed by the U.S. citizen or LPR petitioner.

USCIS will usually approve the I-130 petition if there is enough evidence to show that the petitioner is a U.S. citizen or LPR and the alien beneficiary has a relationship with the petitioner that makes him or her theoretically eligible for an immigrant visa.

Once USCIS approves the I-130, the immigration judge will accept and make a decision on the Application for Adjustment of Status (Form I-485). When reviewing the I-485, the immigration judge may apply special rules for persons who are adjusting status in court rather than through USCIS.

For example, when a person is adjusting status based on marriage, and the marriage was entered into when the undocumented immigrant was already in removal proceedings, the undocumented immigrant must give the court “clear and convincing” evidence that the marriage is real (i.e. that he or she did not get married just to get a green card). Normally, a person seeking a green card based on marriage simply has to show USCIS that it is more likely than not (there's a greater than 50% probability) that the marriage is real. “Clear and convincing” represents a higher burden of proof. The evidence presented must outweigh (though not necessarily eliminate) the judge's doubts.

For more information, see “Immigrants in Deportation or Removal Proceedings.“

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