Adjustment of Status in Removal Proceedings

Nathan R Bogart

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Immigration Attorney

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Posted over 2 years ago. 1 helpful vote

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Brief Introduction to Adjustment of Status

Adjustment of status is a term used to describe the process of becoming a lawful permanent resident. There are multiple ways to adjust status, but most adjustments are family based. In other words, a beneficiary has a qualifying relationship with a U.S. citizen or lawful permanent resident family member, typically a child, parent, or spouse.

In most cases, eligibility is available to you if (1) you entered the U.S. legally; (2) a visa is currently available to you; (3) unless you are an immediate relative, you have never worked without permission; (4) unless you are an immediate relative, you have always maintained lawful non-immigrant or parolee status; (5) you are not a crew member, an alien admitted in transit without a visa, an alien admitted with an S visa, or an exchange visitor admitted with a J visa; (6) unless an immediate relative, you were not a nonimmigrant admitted under the visa waiver program; (7) you were not admitted with a K visa; and (8) you are not inadmissible. Also, eligibility may be available to those who entered the United States without if they qualify under ยง245(i).

For immediate relatives, i.e., the spouse, parent, or unmarried son or daughter under the age of 21 of a U.S. citizen, visas are immediately available, so there is no need to wait before being able to complete the process.

There are several benefits of adjustment of status in addition to becoming a lawful permanent resident, including (1) not having to return to your home country for consular processing, which can take months or years and cost thousands of dollars; (2) you may be able to receive an employment authorization document while the adjustment of status application is pending; and (3) if the application is denied, it is reviewable before an immigration judge, and if necessary, the Board of Immigration Appeals and federal appellate courts.

Adjustment of Status as a Form of Relief from Removal

Adjustment of status is also available as a defense for qualifying beneficiaries who end up in removal, or deportation, proceedings. Sometimes, individuals who would otherwise qualify for adjustment of status end up in removal proceedings before beginning the adjustment process. On other occasions, an application for adjustment of status may have been denied by USCIS and the alien issued a Notice to Appear. In either case, an immigration court may review adjustment applications.

In removal proceedings, you would still need to qualify and be eligible for adjustment of status as if you were applying before USCIS. The immigration court should not require anything more or less than USCIS.

Procedure for Applying for Adjustment While in Removal Proceedings

If applying while in proceedings, the qualifying relative must file the I-130, Petition for Alien Relative with the USCIS if it has not already been filed and approved.

Although local rules may vary with regards to filing, most courts will require that you file Form I-485 Application to Register Permanent Residence or Adjust Status with the immigration court along with Form I-485A if adjusting under 245(i), Form G-325A, Form I-864 Affidavit of Support, results of the medical examination on Form I-693 and proof the marriage is bona fide once the I-130 is approved.

Once everything is filed, the immigration court will review the I-485 and its supporting documentation at an individual hearing. At the hearing, you will need to demonstrate you are qualified for adjustment of status and are not inadmissible to the United States due to disqualifying factors, or that a waiver would cure such factors if they do exist. If approved, the immigration court will issue an order to that effect. From that moment on, you will be a lawful permanent resident, although it bears noting you will receive your green card at a later date.

It is important to remember that adjustment of status is a form of discretionary relief, meaning even if you qualify, the immigration judge can deny relief if he or she feels you do not merit adjustment of status. In other words, even if you qualify, the immigration judge may still deny it.

Conclusion

Like any form of immigration relief, adjustment of status in removal proceedings is not without risks. The application could be denied, the financial costs could be high and the process could take a long time. Still, if you meet the eligibility requirements, adjustment of status could bring lawful permanent residency and a form of stability likely absent from your life for some time to your future.

Additional Resources

Adjustment of Status in Removal Proceedings

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