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Can I File Form I-485 While in Removal Proceedings?

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September 28, 2022

Key Takeaways

If you are eligible, you can file Form I-485, Adjustment of Status Application, even if you are in removal proceedings and the U.S. government is trying to deport you. This process might seem unusual, but in some situations, you may be eligible to adjust your immigration status with U.S. Citizenship and Immigration Services (USCIS). Read on to learn when, why, and how you might file Form I-485 during a removal proceeding.

Table of Contents

What Is a Removal Proceeding?

In a removal proceeding, the U.S. government adjudicates or legally decides whether someone can remain in the United States or must be deported. Under the Immigration and Nationality Act (INA), any person who is not a U.S. citizen can face this. For example, someone with an immigrant visa who commits a severe crime may face deportation.

After Immigration and Customs Enforcement detains you, they will refer your case to the Department of Homeland Security. You will first have a bond hearing where you can request release from detention while the immigration court handles your case. Afterward, you will receive a Notice to Appear. This notice will tell you your hearing date for your master calendar hearing (MCH). This hearing is your first one in immigration court.

The Executive Office for Immigration Review (EOIR) manages the immigration courts. An immigration judge will decide whether you can remain in the United States under immigration law. During your MCH, the judge will usually review your charges and set a date for your main deportation hearing.

After a judge makes a decision, you can appeal it to the next court, the Board of Immigration Appeals. After that, you can appeal to the U.S. Court of Appeals and the Supreme Court.

Although you have entered the removal proceeding process, you can still consider applying for adjustment of status to remain in the United States legally.

Is It Possible To File an Adjustment of Status During a Removal Proceeding?

Yes, it is possible to adjust your status during removal proceedings. Although this may seem confusing, there are certain cases when it is possible. For example, you may not have learned you were eligible for immigration benefits until you were in removal proceedings. Or you may not have been eligible until your removal proceedings. Perhaps a family member recently became a lawful permanent resident (LPR) or underwent naturalization, and now you automatically qualify for a visa number and don’t have to wait for your priority date.

However, only specific individuals are eligible, and you must meet these requirements:

  • You underwent inspection or parole at a port of entry, and officials admitted you to the United States. If you entered the country without inspection, you are not eligible.
  • You have a family member who qualifies you for a green card.

There is one exception to the lawful entry requirement. If you are an undocumented immigrant who entered unlawfully, you may be able to qualify under 8 CFR Section 245(i) of immigration law. To do so, you must be the recipient or beneficiary of one of these processes. In other words, someone else must have filed one of these applications on your behalf:

  • A visa petition or labor certification was submitted to USCIS or the Department of Labor (DOL) on or before April 30, 2001, or
  • A visa petition or labor certification was filed between January 14, 1998, and April 30, 2001, and you can prove that you were physically present in the U.S. on December 21, 2000.

USCIS or the DOL must have approved this petition or certification. Or, it must have been “approvable when filed.” This phrase means it must have been valid and not fraudulent. For example, you must have had a USCIS-approved relationship when filing the petition.

What Is Form I-485?

Form I-485, or the Adjustment of Status Application, is a USCIS form that serves as a green card application. Foreign nationals with nonimmigrant status who are in the United States can apply for a green card, which allows them to become an LPR. This process differs from consular processing, in which a person applies for permanent resident status outside the U.S.

To file this adjustment application, you need to meet the eligibility requirements. USCIS states that you can qualify for family, humanitarian, or employment reasons for applying. For the family case, you must have a family member or spouse who is a legal permanent resident or U.S. citizen to qualify. Your relative will need to file Form I-130, Petition for Alien Relative, to prove their relationship to you.

You also need to be admissible to the United States and not face any bars from entering. For example, reasons for inadmissibility could include criminal acts such as drug abuse or terrorism. For less severe reasons, you can apply for waivers of inadmissibility.

How Do I File Form I-485 During My Removal Proceeding?

Usually, USCIS handles the adjustment of status applications. However, if you are already in removal proceedings, USCIS will only decide on Form I-130, the Petition for Alien Relative.  Your eligible relative will file this form. As long as you can prove your relationship and that your petitioner is a U.S. citizen or LPR, USCIS usually approves the document.

Afterward, the immigration judge gets to decide on Form I-485, Application to Adjust Status, or Register Permanent Residence. The judge may apply special rules for people adjusting status in court instead of the usual way through USCIS.

For example, if you are applying based on marriage and entered the marriage while already in removal proceedings, there may be a higher burden of proof that your marriage is real. In other words, you will need to prove you did not get married for immigration benefits. Typically, you just need to prove to USCIS that it is more likely than not that your marriage is real.

However, in immigration court, according to the EOIR, you will have to give “clear and convincing evidence.” This standard is a higher bar. You will likely have to submit documents, testify at your court proceedings, and undergo questioning from the judge and government attorney. It may be best to seek legal advice from an immigration lawyer for this process.

Conclusion

Applying for adjustment of status can be complicated, especially if you are already in removal proceedings, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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