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

If you are an undocumented immigrant in the U.S., 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 eligible for a green card, wouldn't you have applied for it already?

Nevertheless, it sometimes happens that an undocumented immigrant is eligible to apply to adjust status (get a green card) through a U.S. citizen or permanent resident family member regardless of having been placed into removal proceedings. The usual reasons include that they didn't previously realize they were eligible for a green card, or the timing just happened to work out so that their 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. People who are still living in other countries while they complete the U.S. immigration procedures usually use a different procedure, called "consular processing." And even some immigrants living in the United States are not allowed to use the adjustment of status procedure, despite being theoretically eligible for a green card.

The adjustment of status application procedure is available only if:

1. The immigrant made a lawful entry to the United States. This means that the immigrant was authorized to enter the U.S. and was inspected and admitted at the U.S. border or port of entry (unless the immigrant is covered by Section 245(i) of the I.N.A., discussed below).
2. The immigrant is admissible and not subject to any bars from entry (as opposed to "inadmissible," which is described in Inadmissibility: When the U.S. Can Keep You Out).
3. The immigrant has a qualifying relative who is an LPR or U.S. citizen.
4. The immigrant has a visa petition approved on their behalf by U.S. Citizenship and Immigration Services (USCIS), filed by the U.S. relative (see The Visa Petition: The First Step for Family and Employment Green Cards for more on this).
5. The immigrant has an immediately available visa number or priority date (See How Long Is the Wait for Your Priority Date to Become Current?).
6. The immigrant has no immigration violations (for example, hasn't worked without authorization, unless an exception excuses this act).

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.

A Few People Can Adjust 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 might still be able to adjust status under an old section of the immigration laws called Section 245(i). It's unlikely, but very beneficial for a few lucky people!

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," which means that the petition was valid, not fraudulent, and the relevant relationship actually existed when the petition was filed.

Special Procedures for Adjusting Status in Immigration Court Removal Proceedings

Outside of removal proceedings, USCIS is the agency 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 Form I-130, Petition for Alien Relative, 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 Form I-485, Application to Adjust Status or Register Permanent Residence. When reviewing the I-485, the immigration judge may apply special rules for people 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 immigrant must give the court "clear and convincing" evidence that the marriage is real (in other words, that the immigrant did not get married just to get a green card, which is marriage fraud). 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 or bona fide. "Clear and convincing" represents a higher burden of proof. The evidence presented must outweigh (though not necessarily eliminate) the judge's doubts.

The applicant will need to submit documents that the marriage is bona fide, as well as testify at the proceedings and undergo cross-examination by the government attorney as well as questioning by the judge.

Getting Legal Help

Because of the complexity of the deportation process and the rules about adjusting status, it's best to get a lawyer's help with all this.

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