Adjustment of Status to Lawful Permanent Residence in Deportation Proceedings
As an undocumented foreign national in removal proceedings, you should consider the option of pursuing adjustment of status to a green card. This involves having a certain family relationship to a U.S. citizen or legal permanent resident. Sometimes a foreign national can adjust their status during removal proceedings if they were not eligible before the time of their arrest, or if they were not aware that they could apply for a green card.
Adjustment of status applicants must have entered the U.S. lawfully unless they fall into an exception under INA Section 245(i).
Applying for adjustment of status involves meeting specific requirements. These include showing that you are admissible to the U.S., you have a qualifying relative who is a U.S. citizen or green card holder, you have not violated any immigration laws, the qualifying relative has filed a visa petition for you that USCIS has approved, and your visa number or priority date is immediately available. Another requirement involves showing that you lawfully entered the U.S. In other words, you were inspected and admitted at a border or port of entry, and your entry was properly authorized. This might seem to exclude any undocumented immigrants, but certain exceptions apply to each of the requirements for adjustment of status. An exception to the lawful entry requirement arises from Section 245(i) of the Immigration and Nationality Act.
Understanding Section 245(i)
This section of the INA applies to an undocumented foreign national who was a beneficiary of a visa petition that was submitted to USCIS on or before April 30, 2001, or who was a beneficiary of a labor certification that was submitted to the Department of Labor on or before the same date. You also can work around the lawful entry requirement under this section if you were a beneficiary of a visa petition or labor certification that was filed between January 14, 1998 and April 30, 2001, and you were physically present in the U.S. on December 21, 2000. The foreign national has the burden of proof to show that an exception applies.
You also would need to show that the visa petition or labor certification was actually approved or was approvable when it was filed. It must have had a legitimate basis, such that USCIS or the Department of Labor would have been able to approve it.
Adjusting Status in Removal Proceedings
The first step in adjusting status in removal proceedings is submitting Form I-130 to USCIS. This is the Petition for Alien Relative. Once the family member of the foreign national in removal proceedings submits Form I-130, USCIS will decide whether the foreign national would be eligible for a green card. This will involve evaluating the proof of the family member’s citizenship or green card status, as well as the proof of their relationship with the foreign national. If USCIS grants the I-130 petition, the next step is to submit Form I-485 (the adjustment of status application) to the immigration judge.
When a foreign national applies for adjustment of status during removal proceedings, the immigration judge receives and makes a decision on Form I-485, instead of USCIS.
A judge may not evaluate an adjustment of status application in the same way that USCIS would evaluate it under normal circumstances. The foreign national may need to meet a higher standard of proof. If they are seeking a green card based on their marriage, they will need to provide clear and convincing evidence that the marriage is valid if it happened after they entered removal proceedings. In contrast, an ordinary applicant for adjustment of status would need to meet a preponderance of the evidence standard, which means showing that it is more likely than not that the marriage is valid. Clear and convincing evidence is a lesser standard than “beyond a reasonable doubt,” however, which is used in criminal cases.
Immigration Law Center Contents
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Immigration Law Center
- Green Cards and Lawful Permanent Residence in the U.S.
- Becoming a U.S. Citizen Under Naturalization Law
- Immigrant Visas Leading to Lawful Permanent Residence in the U.S.
- Non-Immigrant Visas Providing a Legal Basis for Temporary Residence in the U.S.
- Work Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Family Immigration Options Under the Law
- Investor Visas Providing Legal Status in the U.S.
- Visitor Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Student Visas Allowing Foreign Nationals to Legally Enter the U.S.
- Denials of Visas or Green Cards & Your Legal Options
- Consular Interviews When Seeking a Visa or Green Card
- VAWA Petitions for Foreign Nationals Affected by Domestic Violence & Seeking Legal Status in the U.S.
- How Children of Foreign Nationals Affected by Domestic Violence Can Legally Obtain Immigration Status
- Work Authorization for Foreign Nationals Without Green Cards
- How Foreign Nationals Unable to Return Home Safely May Legally Qualify for Temporary Protected Status
- Asylum for Foreign National Refugees
- Humanitarian Parole for Foreign Nationals With Compelling Needs
- Advance Parole for Foreign Nationals Living in the U.S. Without Green Cards
- Deferred Action for Childhood Arrivals (DACA) and Temporary Legal Protections From Deportation
- Visa Waiver Program for Brief Visits to the U.S. Without Formal Legal Status
- Grounds for Finding a Foreign National Legally Inadmissible to the U.S.
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How the Deportation Legal Process Works
- When Criminal Convictions Are Legal Grounds for Deportation
- False Claims of Citizenship Leading to Deportation
- Guilty Pleas and No Contest Pleas Leading to Deportation
- Postponing Legal Hearings in Immigration Court
- Changing Venue for Legal Proceedings in Immigration Court
- Witnesses in Legal Proceedings in Immigration Court
- Summary Proceedings Involving Deportation WIthout a Legal Hearing
- Deferred Inspection Appointments for Lawful Permanent Residents Returning to the U.S.
- The Notice to Appear and the Start of Legal Proceedings in Immigration Court
- Master Calendar Hearings in Legal Proceedings in Immigration Court
- Merits Hearings in Legal Proceedings in Immigration Court
- Defenses to Deportation for Foreign Nationals Without Legal Status in the U.S.
- Orders of Removal Following Failure to Appear for Legal Proceedings in Immigration Court
- When Government Lawyers Appeal Immigration Court Decisions
- Cancellation of Removal for Green Card Holders
- Cancellation of Removal Without a Green Card
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Adjustment of Status to Lawful Permanent Residence in Deportation Proceedings
- Voluntary Departure as a Legal Alternative to Deportation
- Detention During Deportation Proceedings & Legal Recourse
- Waivers of Alien Smuggling When Seeking Immigration Relief or a Green Card
- Custody & Related Legal Issues for Children of Arrested or Deported Foreign Nationals
- Prosecutorial Discretion in Deportation Proceedings
- Appeals of Immigration Decisions Through the Legal Process
- LGBTQ+ Individuals Facing Immigration Legal Issues
- Inspections of Foreign Nationals Seeking to Legally Enter the U.S.
- Unlawful Presence in the U.S. & Legal Penalties
- Tax Law Issues for Visa or Green Card Holders
- Waivers of Legal Inadmissibility to the U.S.
- How a Criminal Record Legally Affects Immigration Status
- How Social Media Use Can Affect Legal Admissibility to the U.S.
- Immigration Law FAQs
- Immigration Legal Forms
- Find an Immigration Law Lawyer
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