You’ve submitted an application for asylum with 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 and whether you should adjust status to permanent resident instead of proceeding with your request for asylum.
The first question you may be wondering about is whether it is easier to pursue asylum or adjustment of status based on your marriage to a U.S. citizen.
Asylum cases have a high burden of proof, require evidence that you fear persecution based on at least one out of a number of protected grounds, and can be difficult to win. Even if you are granted asylum, you will not be able to apply for your green card until one year later. And even then, your green card can be denied if conditions in your home country have improved. To learn more about applying for asylum, see Nolo’s website section 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 adjust status and 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.
This means that the marriage may not be an arrangement of convenience in order to convey an immigration benefit and that you must intend to share your home and finances 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), please read 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.
The adjustment process can be more difficult for immigrants who marry U.S. citizens after submitting an asylum application or after being placed in removal proceedings than 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 you got married, the timing of your marriage will less likely be a problem, but USCIS or the Immigration Court are likely to examine the details of your relationship closely to ensure that you did not get married just to “fix your papers.”
Your choice of what to do if you get married after submitting an asylum application to USCIS and if you are eligible to adjust status may 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 a decision, you may want to wait and see whether your case is approved before you pursue adjustment of status with USCIS. However, if it is still early and you have not yet attended an interview, 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.
However, you should not withdraw your asylum application. Doing so could raise suspicions about your motivations in marrying and may jeopardize your adjustment application. If your adjustment application is eventually approved, then you may withdraw your application for asylum at that time without potential consequences.
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 while in removal proceedings and you are eligible to adjust status, you can apply for adjustment of status to permanent resident as additional relief from deportation. At this time, you can also request a merits hearing before the judge, to consider your adjustment of status application before the merits hearing on your asylum application.
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. You will need to undergo the equivalent of a marriage interview in open court. And 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.
You will 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 alll; 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. to apply for a visa at a consulate in your home country. This can be a long process, particularly if your request for a waiver is denied. You will most likely require the assistance of an experienced immigration attorney.
Further complicating this process is the fact that you have already told the U.S. government that you fear persecution in your home country, so readily and willingly leaving the U.S. to apply for a visa abroad may raise suspicions with consular officers, border officials, and other government agencies. There is a severe penalty, namely a permanent ban from receiving immigration benefits, if you are found to have submitted a “frivolous” (or fraudulent) asylum application.
Your best bet in this situation is to proceed with your asylum application that was submitted to either USCIS or is awaiting a decision in immigration court. If your request for asylum is approved, you can apply for a green card one year after your asylum is granted. If denied, you may want to request voluntary departure and proceed with your immigrant visa application abroad.