Can Mary adjust status (I-485) while "withholding of removal?"

Asked over 4 years ago - New York, NY

Mary entered US using someone else passport, then Mary applied for asylum and was granted "withholding of removal" by immigration Judge. Then a years later, Mary married Mike (permanent resident, not citizen) and Mike applied I130 for wife. Now I-130 priority day is current. USCIS sent out notice saying I-130 interview will be scheduled but the date not yet set up. Can Mary submit I-485 now to USCIS or wait after the interview to submit I-485? Does Mary have to go back to immigration court to re-open case and adjust status in immigration court?

Attorney answers (1)

  1. Brian David Lerner

    Contributor Level 18

    Answered . Hello:

    USCIS does not have jurisdiction to hear this matter. A Motion to Reopen would need to be made to the Immigration Court upon which your spouse would need to be eligible to apply for residency. It is likely there will have to be a Fraud Waiver that needs to be submitted. Also, it is likely that the petitioning spouse would have to be a U.S. Citizen for adjustment to go forward.

    Regards,

    Brian D. Lerner
    Attorney at Law

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Immigration court

Immigration court is a division of the US Department of Justice that oversees and decides cases involving immigrants facing deportation.

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