Can You Get a Green Card While in Removal Proceedings?

Yes, in many cases you can get a green card while in removal proceedings, but the application is decided by the immigration judge rather than USCIS, the government’s attorney cross-examines you and your spouse, and a marriage that took place after the Notice to Appear was filed must be proven genuine by clear and convincing evidence. The judge also weighs discretion. For the right case, adjustment of status in proceedings is the fastest route to permanent residence available, and winning it ends the removal case outright.

Who can get a green card in removal proceedings

Being in proceedings does not change the basic adjustment rules in INA 245. You still need an approved immigrant petition with a current priority date and you must be admissible, or eligible for a waiver. The most common basis is an immediate relative petition, Form I-130, filed by a U.S. citizen spouse, a U.S. citizen son or daughter who is at least 21, or a U.S. citizen parent of an unmarried child under 21. Immediate relatives have no visa backlog, and an overstay does not bar them from adjusting.

The way you entered the country is often the deciding factor. Section 245(a) requires that you were inspected and admitted or paroled. If you entered without inspection, you generally cannot adjust in the United States unless you are grandfathered under 245(i) through a petition or labor certification filed on or before April 30, 2001, or you were later paroled, for example by traveling on advance parole after a grant of TPS or DACA. Without one of those, the path runs through a consular interview abroad and a provisional unlawful presence waiver, which is a different and longer process.

Our deportation defense lawyers start every adjustment-in-proceedings case with the entry question, because filing an I-485 that the judge cannot legally grant wastes a year and sometimes a continuance you will not get back.

The two-step: USCIS approves the I-130, the judge decides the I-485

The immigration judge has no authority over the I-130 petition. Your relative files it with USCIS in the normal way, and USCIS adjudicates it while your court case continues. Because you are in proceedings, USCIS generally interviews both spouses and applies the heightened scrutiny described below. Once the I-130 is approved, you file Form I-485 with the immigration court, pay the fee to USCIS, complete biometrics, and the judge schedules an individual hearing on the application.

Keeping the court case alive while USCIS works on the I-130 is the practical challenge. Judges grant continuances only for good cause, and under the Attorney General’s decision in Matter of L-A-B-R- the judge looks mainly at whether the petition is likely to be approved and whether approval would actually lead to relief. A well-documented I-130 filed early, with proof of filing and the USCIS receipt notice in the court record, gives the judge a reason to wait. In some cases DHS will agree to dismiss proceedings so that USCIS can decide everything, and in others you may ask the judge to terminate, but neither is guaranteed.

The clear and convincing evidence standard for marriages during proceedings

INA 245(e) presumes that a marriage entered into while the person is in removal proceedings was entered to obtain immigration benefits. To overcome that presumption, you must show by clear and convincing evidence that the marriage is bona fide. That is a higher bar than the preponderance standard USCIS applies to most marriage petitions, and it applies first at USCIS, which must make the bona fide marriage finding before approving the I-130, and again before the judge.

Evidence that meets the standard looks like a shared life, not a single ceremony: joint lease or mortgage, joint bank accounts and tax returns, insurance naming each other, photographs across time with family and friends, birth certificates of children, affidavits from people who know you as a couple, and consistent testimony from both spouses under cross-examination. Our guide to Form I-130 covers the petition itself, and the family-based immigration page explains the categories.

What the individual hearing on adjustment looks like

The hearing on your I-485 is a trial. You testify under oath about your entry, your immigration history, any arrests and your relationship. Your spouse testifies too, usually after being sequestered so the judge can compare the accounts. The DHS attorney cross-examines on inconsistencies between your testimony, your I-130 interview and any prior applications, including old asylum or visa filings that you may have forgotten. The judge then decides admissibility, including any waiver you filed, and whether you merit adjustment as a matter of discretion.

Discretion is where criminal history, prior misrepresentations and immigration violations are weighed against family ties, length of residence, employment and hardship. A single old conviction does not end the case, but every arrest must be disclosed with certified dispositions, because the government already has them.

After a grant, and after a denial

If the judge grants adjustment, the removal case is over and you are a permanent resident as of that date. If your marriage was less than two years old at the time of the grant, your status is conditional and you must file Form I-751 jointly with your spouse in the 90 days before the second anniversary of the grant. Our step-by-step guide to Form I-485 covers what to expect after approval.

If the judge denies adjustment, you can appeal to the Board of Immigration Appeals within 30 days, and a timely appeal stays removal while the Board decides. Discretionary denials are hard to overturn, but legal errors in the admissibility analysis or the bona fide marriage finding are reviewed de novo. Where adjustment is unavailable, cancellation of removal or voluntary departure may still be on the table, and the choice among them should be made before the first pleading, not after a denial.

If you are in removal proceedings and have a U.S. citizen or permanent resident spouse, parent or adult child, a consultation with Capitol Law Partners can determine whether adjustment before the judge is realistic for your entry and record. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our removal defense in immigration court page or schedule a consultation.