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. (Read more here about adjustment of status.) 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.
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.
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.