Can You Adjust Status While in Removal Proceedings?

Posted by Frank Gogol
Updated on April 27, 2022

There are situations when immigrants are in the process of being deported, possibly because of something bad or illegal that they did during their time in the U.S. When you’re being removed, the last thing you’re thinking about is that you have the chance to apply for adjustment of status. But can you adjust status while in removal proceedings? And if so, who can do it and how does it happen? Here’s everything you need to know.

What Is “Adjustment of Status”?

Adjustment of status is something that occurs when a person who is in the U.S. applies for lawful permanent resident status. This is different from consular processing, which is used when someone in a different country is applying for U.S. immigration procedures.

Not everyone is eligible for adjustment of status, though. If you’re intending to adjust your status, then you have to find out whether you have eligibility to obtain a green card based on family or marriage in the first place. Here’s what requirements you should meet if you want to adjust your status:

  • You are admissible as an immigrant and there are no bars from entry for you.
  • You made multiple lawful entries to the U.S. before, which means that you were inspected and admitted at the port of entry of the country, and you were thus authorized to enter
  • You haven’t done any immigration violation
  • You happen to have a qualifying relative who is either a U.S. citizen or an LPR
  • You possess an immediately available priority date or visa number
  • A visa petition has been approved on your behalf by USCIS after a U.S. relative filed it for you

Even for these requirements, there are some exceptions that you need to know about. For instance, if your single violation of the law was “unauthorized employment”, you will not have to worry about the requirement that you should not violate immigration status as an undocumented immigrant anymore. It will not apply to this situation. However, if you want to make sure you know all the exceptions and rules when it comes to the requirements, you should find a suitable attorney and speak to them about it.

Who Is Eligible to Adjust Status During Removal Proceedings?

Can you adjust your status while in removal proceedings? If you’ve reached the point where you’re in the middle of removal (deportation) proceedings, you may be asking that question. Luckily, it is possible, but there are only certain individuals who are eligible for status adjustment during removal proceedings. So, what are the requirements? Here’s what makes one eligible for adjustment of status during removal proceedings:

  • Having been inspected/paroled and then admitted to the U.S.; so, if you entered the country without inspection, you are not going to be eligible. Such a situation may be crossing the border without actually going through the immigration process. However, if you have a qualifying USC relative who submitted a petition before April 30, 2001, then they’re an exception to the rule.
  • You have a relative who qualifies; such a relative could be a U.S. citizen child who is 21 years or older, a spouse who is a U.S. citizen, or a U.S. citizen parent.

I.N.A. Section 245(i)

Are you an undocumented immigrant who entered the U.S. but not in a lawful manner, or someone who violated their immigration status? In such a situation, you may be wondering if you still have any chances of adjusting your status. Well, it is possible, more specifically under Section 245(i), which is an old section of the immigration laws.

However, there are only certain situations when you can apply for adjustment of status under Section 245(i). You can do this as long as you:

  • Are the beneficiary
  • Had a labor certification or visa petition filed between January 14, 1998, and April 30, 2001. Moreover, you should have evidence that you were physically present in the United States on December 21, 2000, so you can prove it.
  • Had a labor certification or visa petition submitted to the Department of Labor or USCIS on or before April 30, 2001.

Bear in mind, though – the labor certification and visa petition we’re talking about here should have been approved or “approvable when filed” if you want these rules to apply. Simply put, the petition shouldn’t have been fraudulent and/or invalid, and there should have been a relevant relationship already when the petition was filed. Otherwise, you may not be able to do it under this section.

Adjusting Status in Removal Proceedings

Usually, USCIS is the one that deals with the adjustment of status process applications, outside of removal proceedings at least. But when there is an adjustment of status application submitted by an undocumented immigrant before the immigration judge, then USCIS has only one responsibility. They have to deal with the processing part and then decide on the Form I-130, also known as Petition for Alien Relative. This petition is filed by either the LPR petitioner or U.S. citizen.

As long as you have any proof that there is a relationship between you, as an alien beneficiary, and the petitioner, USCIS will have to approve the I-130 petition. Having a relationship like that will ensure your eligibility for the immigrant visa, so you should make sure you have proper evidence for it.

As soon as the I-130 is approved by USCIS, then the immigration judge will have to accept it and then make a decision on Form I-485, known as the Application to Adjust Status or Register Permanent Residence. You should be aware that the immigration judge will review the I-485, and will also make sure to apply some special rules if you are someone who adjusts status in court. Adjustment of status is something that normally happens through USCIS, so since you may be doing it in a court instead, special rules are needed.

Let’s say that you are trying to adjust your status based on marriage. However, you entered this marriage while you were in removal proceedings already as an undocumented immigrant. In order to have chances of success, you will have to bring proof to show the reality of the marriage and that you got married out of love, not to obtain a green card.

Someone who is looking specifically for a green card out of their marriage has to show that the marriage is real. But it has to be “clear and convincing” evidence if you want the chances to increase – so, the burden of proof becomes much higher. The proof that you bring has to considerably decrease the doubts of the immigration judge.

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Conclusion

Do you want to adjust your status while in removal proceedings? Then you need to know how it’s done and in which cases someone is eligible for this process. It’s always important to have all the necessary documents, such as proof that the marriage is real in case you apply for status adjustment based on marriage. Showing real proof will increase your chances of achieving your goal. Hopefully, our advice was helpful and now you know what to do to adjust your status while in this situation.


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