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Can my spouse still be deported for having an expired visa even if the marriage is a bona fide marriage?

Chicago, IL |

My fiance and his family are awaiting a second hearing for their deportation process in April due to having expired visas. Can he still be deported even if the marriage is a bona fide marriage, especially if we marry anytime between now and April? How can we try to convey that we are marrying so that he can stay and not just b/c of immigration purposes? We planned to wait until his college graduation in the fall to marry, and we were advised by his lawyer before the first hearing to wait until after the first hearing back in September, which is why we now have to "rush" otherwise I'll lose him. Thanks!

The reason why our lawyer wanted us to wait until after the first hearing is because the lawyer had hoped to "drag out" my fiance and his family's case and straighten out their green card application complications. If the judge agrees that our marriage is bona fide BUT my fiance would have to be deported anyway, what would be the possible reasons for that besides an expired visa? His EAD expired too or either he did not pay to update it, would that count against him, too? Thanx!

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Attorney answers 2


We strongly suggest you consult with an immigration attorney. It is in the Judge's discretion to cancel his removal and afford him permanent residency if the judge believes your marriage is in good faith. Based on the limited amount of information provided, we do not see any advantage in delaying your marriage.


I agree that you and your fiancé need to speak to an immigration attorney that regularly represents people in removal proceedings.

You said that your fiancé applied for residency before, but you do not say on what basis - that is important because if the basis of his original filing was a family-based filing, marrying could affect his eligibility to continue with that application. You also do not say what your own immigration status is - so it isn't clear whether you would be eligible to petition for him after your marriage.

There are many documents that you can provide the court to prove that you married in good faith - financial records, property records, etc. However, if you marry while your fiancé is in removal proceedings, you will have a higher burden to prove to the government that you are marrying in good faith and not for immigration purposes. Our firm has been successful in cases like this in the past, but it requires good documentation.

You state that your fiancé did not renew his employment authorization document. You do not say whether he continued to work. If he continued to work without authorization then that could materially affect his case. There are exceptions to this rule (if your fiancé is applying for residency as an immediate relative or is 245(i) eligible, etc.), but you will need to speak to an immigration attorney to determine these issues for his specific case.

I hope this information is helpful to you.


Elizabeth Rompf Bruen
Attorney at Law

Scott D. Pollock & Associates, P.C.
105 W. Madison Street, Suite 2200
Chicago, IL 60602
Phone: 312-444-1940
Fax: 312-444-1950

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