Marriage to a U.S. Citizen After Submitting an Asylum Application or While in Removal Proceedings

Marriage-based green card applications tend to be easier to pursue than asylum cases, but if your asylum application is already underway, you need to consider additional issues of timing and eligibility.

By , Attorney · UC Law San Francisco

You've submitted an application for asylum to U.S. Citizenship and Immigration Services (USCIS) or in Immigration Court and are awaiting a hearing, an interview, or a decision on your case. What happens if you marry a U.S. citizen while your asylum application is pending? This article will discuss your options when you might qualify for both types of immigration benefit.

Which Is Better: To Pursue Asylum or Adjustment of Status After Marriage to U.S. Citizen?

In considering whether it's easier to pursue asylum or adjustment of status based on your marriage to a U.S. citizen, one important thing to weigh is the complexity of the law of asylum and related benefits like withholding of removal or privileges under the Convention Against Torture. Qualifying is not always straightforward, as the law includes details you might not be aware of. For example, applications for asylum must (with limited exceptions) be filed within one year of entry into the United States; the feared persecution must have been motivated by your identity in at least one of five specific groups; and various bars to approval apply. You might be denied asylum if, for example, there is a safe place in your country to which you could have relocated.

Even if you are granted asylum, you will not be able to apply for an actual green card (lawful permanent residence) until one year after that. The U.S. government could also terminate your asylee status and refuse to eventually grant permanent residence if conditions in your home country have improved, or if you are later convicted of a crime that would have made you ineligible for asylum in the first place. To learn more, see articles on Asylum & Refugee Status.

As for a marriage-based green card, in most cases, people who are eligible for adjustment of status, who are not otherwise inadmissible to the U.S., and who have a genuine relationship with the U.S. citizen spouse will be able to obtain a green card without much difficulty. The law dictates that all marriage-based applications for immigration benefits must be "bona fide" or entered into in good faith (rather than fraudulent). In other words, the marriage cannot have been an arrangement of convenience, and you must intend to share your home and life together as a married couple.

To determine whether you are procedurally eligible to apply for your green card via USCIS (without leaving for a consulate), see When Adjustment of Status Is Possible for the Immigrant Spouse of a U.S. Citizen.

As you can see, marriage-based green card applications tend to be easier to pursue than asylum cases. Because your asylum application is already underway, however, you need to consider additional issues of timing and eligibility.

Will You Have Difficulties Proving a Good Faith Marriage If the Timing Looks Suspicious?

The answer to this question is: it depends. Of course, people are free to marry whenever they want to. But if you are already in removal proceedings and marry a U.S. citizen, and your U.S. citizen spouse proceeds to file an I-130 (Petition for Alien Relative) on your behalf (the first step in the process of marriage-based immigration to the United States), the timing looks a bit too convenient. For that reason, the I-130 will be denied unless the petitioner (U.S. citizen spouse) can prove that you and your U.S. spouse have a "bona fide" marriage (as described above). USCIS is the government agency responsible for making decisions on all I-130 petitions, and also determines whether a petitioner satisfactorily shows that marriage to a foreign spouse in removal proceedings is "bona fide."

If you are not in removal proceedings, but have submitted an asylum application and subsequently marry a U.S. citizen, the adjustment of status process can be more difficult than it is for the average applicant. Immigration officials will wonder why you decided to get married while your asylum case is pending. Expect plenty of questions to make sure that your marriage isn't just a "back-up plan" to insure against a denial of your asylum case.

If you and your spouse had a long relationship or dating history before getting married, the timing of your marriage will less likely be a problem, but after your spouse submits the I-130 that starts the sponsorship process, USCIS is likely to examine the details of your relationship closely. It will be helpful to submit numerous documents, such as photos of you with your spouse and families; evidence of cohabitation; shared financial responsibilities; shared insurance plans; birth certificates of children (if you have any); and other evidence of a good faith marriage along with the I-130.

On the other hand, various "red flags," such as a huge age difference or no shared language between two members of the couple, can make USCIS especially suspicious.

Best Strategy If Marriage Takes Place After Submitting an Asylum Application But Before Any Removal Proceedings

Your choice of what to do if you get married after affirmatively submitting an asylum application to USCIS and if you are eligible to adjust status could depend on where you are in the process and the details of both your asylum and adjustment case. This is where consulting with an experienced attorney is a good idea.

If you have already attended your asylum interview with USCIS and are just awaiting the agency's decision, you might want to wait and see whether your case is approved before you pursue adjustment of status with USCIS based on your marriage.

However, if it is still early and you have not yet attended an asylum interview, and you are eligible to adjust your status in the United States, it might make sense to apply for adjustment of status now and send a letter to the Asylum Office handling your application requesting that your asylum case be placed on hold while you await a decision on your adjustment application.

But again, not every foreigner who is in the United States and married to a U.S. citizen will be allowed to apply to adjust status, for technical reasons. Immigrants who were not paroled or inspected by an immigration officer at the time of their entry into the United States will need to travel to a U.S. embassy or consulate abroad before they can obtain a green card (called "consular processing"), and will need to request an unlawful presence waiver in order to return (as described in the final section below).

You should not, however, withdraw your asylum application following your marriage, even if you are adjustment-eligible. Doing so could raise suspicions about your motivations in marrying and could jeopardize your adjustment application. If you receive an asylum interview notice while your adjustment application is still pending, you should still attend your asylum interview and answer all questions honestly and fully.

If your marriage-based adjustment application is eventually approved by USCIS, and your asylum application is still pending, then you may notify USCIS of your green card approval by sending a copy of the I-485 approval notice and a letter asking to withdraw the application since you are already a green card holder and no longer need asylum protection.

However, if USCIS has denied your asylum application, it may automatically refer your case to immigration court for removal proceedings. At this point, you should hire an experienced immigration attorney to help you close the removal proceedings.

Best Strategy If Marriage Takes Place While in Removal Proceedings

Let's say you are in removal proceedings in immigration court and you have already submitted a defensive application for asylum in order to stop your deportation from the United States. If you marry a U.S. citizen now, and you are eligible to use the adjustment of status procedure to submit your marriage-based green card application in the U.S., you might want to consider asking the immigration judge to administratively close or continue your case. The idea would be to give your U.S. citizen spouse time to file an I-130 and allow USCIS time to decide on it. (Remember, as stated above, that if you marry while in removal proceedings, your spouse will need to convince USCIS that you entered into a good faith marriage.)

If USCIS approves the I-130 petition, you can apply for adjustment of status to permanent resident before the immigration court. At this time, you can also request that the immigration judge consider your adjustment of status application first, before your asylum application. Most judges will gladly do this, if it seems clear that you are eligible for adjustment of status and there are no issues regarding your admissibility to the United States. This process of adjusting status in immigration court is similar to adjusting status before USCIS, except that the immigration judge (IJ) has the final say on whether to approve or deny your request.

Again, the IJ will look extra hard at whether your marriage is bona fide, because of the fact that it took place while you were facing possible deportation.

Best Strategy If You Are Ineligible to Use the Adjustment of Status Procedure to Apply for a Marriage-Based Green Card

You will most likely be ineligible to adjust status if you entered the U.S. without having been inspected by an immigration or border official (unless you fall into a rare exception). That's different than saying you're ineligible for a green card at all; but you won't be able to apply for it from inside the United States.

In this case, assuming you have spent more than six months in the U.S. without permission, you will, in order to apply for an immigrant visa based on your marriage, need to apply for a waiver of unlawful presence and leave the U.S. after it's approved, in order to apply for your immigrant visa at a consulate in your home country. So as to minimize the time loved ones are separated during the application process for an unlawful presence waiver, the U.S. government allows applicants to apply for it from within the United States, so long as they don't also need other inadmissibility waivers. If this waiver is approved, you can travel to their home country for an immigrant visa interview with the U.S. consulate or embassy and be fairly confident that you won't be trapped there for several years owing to the inadmissibility issue. You will, however, most likely require the assistance of an experienced immigration attorney to succeed with the waiver and the other complex procedures involved.

What particularly complicates the process above is the fact that you have already told the U.S. government that you fear persecution in your home country. Readily and willingly leaving the U.S. to apply for a visa in that country could raise major suspicions with U.S. consular officers, border officials, and so on. There is a severe penalty, namely a permanent ban from receiving immigration benefits, if you are found to have submitted a "frivolous" (or fraudulent and baseless) asylum application.

If you decide to pursue your asylum application before the immigration court and it is approved, you can apply for a green card one year after your asylum is granted. If denied, you might want to request voluntary departure from the judge, and proceed with your immigrant visa application from abroad.

Getting Legal Help

Your best bet in this situation is to speak with an experienced immigration attorney who can assess the strength of your asylum application as well as an application for an unlawful presence waiver, and discuss the best options for yourself and your family.

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