Adjustment of Status while in Removal Proceedings

By Reuben Seguritan

An applicant may file for an adjustment of status (I-485 application) while he is in removal proceedings. Removal proceedings is the procedure of the government to remove aliens who are illegally in the United States or who are otherwise inadmissible to the US. However, since the applicant is already in removal proceedings, the immigration judge will receive the I-485 application and not the USCIS. This will form part of the defense of the applicant to being removed from the US. The immigration judge will only accept the I-485 application after the USCIS has processed and approved the I-130. The USCIS will only approve the I-130 after evaluating the petitioner’s proof of US citizenship or LPR status and proof of the petitioner and applicant’s relationship.

The I-485 applicant during removal proceedings must show by clear and convincing evidence that he is eligible to adjust status because of his relationship to the I-130 petitioner. Clear and convincing evidence is showing that it is more likely than not that what the applicant is saying is true and real. The evidence of the applicant must outweigh the evidence of the government so that the judge will be convinced that the application for permanent residence should be granted. If he is the spouse of the petitioner, he must prove by clear and convincing evidence to the immigration judge that their marriage is genuine and not to gain a green card. Immigration judges are critical if the applicant and petitioner got married after the removal proceedings began. Hence, the applicant must show all of the evidence they have to show that the relationship is legitimate and they want to build a life together as a married couple in the US.

There are certain eligibility requirements which the applicant must meet when filing his I-485. These are: 1. currently in the US; 2. he entered the US legally; 3. a visa is currently available for the applicant; 4. unless he is an immediate relative, he has never worked without permission; 5. unless he is an immediate relative, he always maintained lawful non-immigrant or parolee status; 6. he was not a crew member, an alien admitted in transit without a visa, an alien admitted with an S visa (alien witnesses and informants), or an exchange visitor admitted with a J visa (visa issued to research scholars, professors and exchange visitors); 7. Unless an immediate relative, he was not a nonimmigrant admitted under the visa waiver program; and 8. He is not inadmissible.

An applicant can also be eligible to file the I-485 if he qualifies under INA Section 245(i). This Section allows undocumented immigrants to file I-485 even if they did not enter the US lawfully or if they otherwise violated their immigration status. This Section requires the applicant to be the beneficiary of a visa petition submitted to the USCIS or a labor certification submitted to the Department of Labor on or before April 30, 2001. If filed after January 14, 1998, physical presence on December 21, 2000 in the United States must be proved. If filed on or before January 14, 1998, no proof of physical presence in the US on December 21, 2000 is required. Any such visa petition or labor certification in favor of the applicant must have either been approved or been approvable when filed. This means that the petition was valid and not fraudulent, and that there was a genuine relationship when the petition was filed.

When the applicant files the I-485, he may also file I-765, Application for Employment Authorization so that he can work while the I-485 is pending. However, there is no certainty that the USCIS will approve the I-485 application. The granting of the I-485 is always discretionary. Applicants are advised to ensure that all required documents, such as the proof of marriage to the US citizen or LPR spouse, or the birth certificate to show that the petitioner is the parent of the child applicant, is clear and true.