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I applied for asylum and was denied. Case transferred to NY from another jurisdiction for removal, but I got married. I-130?

New York, NY |

I applied for asylum and was denied last year. My case was transferred to NY from another jurisdiction for removal, but I got married. Should I go ahead and file for my I-130 right now through my spouse? Should I also do the I-485 now or should i file that after removal proceedings are done?

Attorney Answers 4

Posted

File the I-130 now. But understand that your marriage will come under additional scrutiny. There is a presumption in the immigration laws that anyone who marries after the start of removal proceedings is just trying to stop deportation, and the marriage is not genuine. You and your spouse can overcome this presumption, but only with "clear and convincing" proof that your marriage is real.

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Mark Robert Barr

Mark Robert Barr

Posted

I'm also assuming you married a U.S. citizen, is that correct?

Mark Robert Barr

Mark Robert Barr

Posted

If so, file the I-130 with USCIS. Then provide the immigration court with proof that the I-130 is pending, and, if your asylum hearing is coming up in the near future, ask that it be postponed based on the pending I-130. The immigration judge may want to briefly examine you and your spouse to determine whether or not USCIS is likely to find the marriage to be real. You will also want to show the court that you appear to be eligible for adjustment based on the marriage. You'll want to show the court, for example, that there are no criminal issues, or past immigration violations that would bar admission, or instances of fraud, etc., etc.

Mark Robert Barr

Mark Robert Barr

Posted

Regarding the I-485, you'd have many options. You could file with the court at the same time you filed the I-130 with USCIS. This would allow you to also file for a work permit, if you weren't able to get one based on the pending asylum. Then, when the I-130 is approved, either keep the adjustment case in court, or move to terminate proceedings to allow for USCIS adjudication of the AOS.

Mark Robert Barr

Mark Robert Barr

Posted

In some jurisidictions, you could also move immediately for termination, based on the pending I-130 and I-485, and proof that you appear to qualify for both.

Posted

I agree with my colleague's excellent answer.

I would be careful about the timing of the filing of the I-485, however, and would do so only after having the judge agree to terminate the removal proceedings. Otherwise, depending on the particular jurisdiction, you risk USCIS not moving on that I-485 since it is not approvable and you can risk losing the $1,070 filing fee and would have to refile.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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Posted

Hire an immigration attorney or risk facing removal proceedings on your own.

NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

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Posted

You can file I-130, but at this point you need to have an attorney as the process will be much more complicated than regular adjustment of status.

Att. number 917-885-2261 This advice does not create an attorney client relationship. No specific legal advice may be offered by the lawyer until a conflicts check is undertaken. Information sent through a web form or via email may not be treated as confidential. Please accept my apologies for spelling mistakes. Law Office of Alena Shautsova , New York Immigration Attorney http://www.shautsova.com Blog: http://www.russianspeakinglawyerny.com

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