For people in the U.S. illegally, a constant risk exists of being picked up by U.S. Immigration and Customs Enforcement (ICE), then placed into removal (deportation) proceedings. They may have a U.S. citizen or permanent resident boyfriend or girlfriend whom they've thought of marrying, but weren't sure yet. Or they may already be married, but because of the immigrant's unlawful U.S. entry, been unable to apply for the green card without a risky trip outside the United States.
What if the immigrant gets picked up by ICE? This sometimes spurs the couple to marry right away. Would that actually help, or would it be too late by then to stop the deportation?
It is possible in some cases to get U.S. lawful permanent residence based on a marriage that took place after immigration proceedings were begun—in fact, to put forth the marriage as a defense to deportation—but it's not easy, and would definitely need a lawyer's help. This article will outline the basic issues involved.
After an immigration arrest, the foreign-born person is normally detained at first. A judge might grant release upon payment of a bond, and if the couple can afford to pay the bond and get the non-citizen out, this might be the time to actually get married. (Engineering a marriage while one person is in detention will be difficult.)
With any application for lawful permanent residence (a green card) based on marriage, the couple must prove to the satisfaction of U.S. Citizenship and Immigration Services (USCIS) that the marriage is “bona fide”—in other words, the real thing, not just a sham or fraud to get the person a green card.
That’s a challenge for every applicant. One must supply documents showing an intention to form a life together (such as joint bank statements and lease agreements), and for applicants who are in the U.S. already, pass an interview in which both halves of the couple undergo questioning.
But the challenge is even greater when the non-citizen has been placed into removal proceedings. That’s because a presumption is raised that you entered into marriage solely to gain an immigration benefit for the non-citizen. In short, you would have to work harder than the average couple to come up with sufficiently convincing evidence that your marriage is the real thing. (Your time living together should be helpful for this.)
You would need to clear this hurdle outside the court proceedings, by submitting a Form I-130 with attached documentation of a bona fide marriage to USCIS and waiting for its response. With any luck, that response will come before your next scheduled hearing.
In order to obtain a green card while in the U.S., the non-citizen must qualify to use a procedure known as “adjustment of status.” Everyone who doesn’t qualify for this must apply for their green card at a U.S. consulate in their home country.
In simplest terms, people who entered the U.S. legally and married a U.S. citizen can adjust their status here, while those who entered unlawfully (for example, by crossing the border away from a checkpoint area), cannot, and must use consular processing. That is true for ordinary applicants, and it’s true in immigration court proceedings.
If the non-citizen entered on a visa or by other lawful means, the immigration court judge has the power (after the I-130 has been approved by USCIS) to either grant adjustment of status or to terminate removal proceedings so that the adjustment of status case can be decided by USCIS.
If the non-citizen entered unlawfully, however, the only hope is that the immigration court judge can be persuaded to terminate removal proceedings for consular processing. And then there will be another hurdle to clear—when the non-citizen leaves the country, he or she is likely to face a ten-year inadmissibility bar based on unlawful presence in the United States. The best hope here is probably to apply for what's called a provisional waiver.
As mentioned above, this is complex territory, and we’ve given only a general overview—see an immigration attorney for an in-depth analysis or your options and discussion of strategy.