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One form of relief available to respondents facing removal in immigration court may be adjustment of status based on marriage to a U.S. citizen.  Adjustment of status permits an admissible alien to obtain lawful permanent residence (i.e., a green card) without leaving the United States.

You should seek the advice of an immigration attorney in determining whether or not this will be a viable form of relief. Factors such as the nature of the allegation against you and/or other legal impediments may prevent you from pursuing this adjustment of status while in immigration court. For example, you would still need to meet the admissibility requirements for adjustment—or obtain a waiver.

When a respondent gets married during immigration court proceedings, his or her attorney will typically first file an I-130 with USCIS along with detailed evidence of the bona fides (good faith) of the relationship. This is particularly important since applicants who marry after the initiation of proceedings must prove the validity of the marriage by clear and convincing evidence because of the obvious suspicion that the marriage was entered into solely for the purpose of avoiding the immigration problems. *Never enter into a fraudulent or sham marriage.

According to INA 204(g); 8 C.F.R. 204.2(a)(1)(iii), USCIS cannot approve an I-130 immediate relative petition without an exemption if the marriage occurs during the respondent’s exclusion, deportation or removal proceedings. For this reason, it is important for the applicant to specifically request a bona fide marriage exemption under INA § 245 (e) (3); 8 C.F.R. § 204.2 (a) (1) (iii) and § 245 (c) (8) (iii) – (v). While it is true that the agency may presume you are requesting the exemption, it is best to clearly indicate so in a cover letter in order to avoid delays in processing the case.

Once the I-797C filing receipts are received back from the agency the immigration attorney should file a motion to continue the case along with proof of filing, copy of the I-130 and copies of the evidence supporting the bone fides of the relationship.  Incidentally the I-130 petition package should be filed by certified mail or other trackable courier service so that you can use the shipping receipt as evidence of filing in case the I-797C does not arrive in time for the hearing of filing of the motion.

Once the I-130 petition is approved and the I-485 and related applications have been properly filed, the immigration judge can adjudicate the respondent’s adjustment of status or, in the alternative, terminate the case for processing by USCIS.

Tom & Peter

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Adjustment of status is the process used by a foreign national who is physically present in the United States to obtain a green card. The alternative is to apply for an immigrant visa through a US consulate abroad. Depending upon the particular case load of USCIS service centers in the US, adjustment of status may be preferred by foreign national over consular filing because 1) leaving the US may not be an option if the beneficiary has unlawful presence in the US, 2) it avoids the expense, time of separation and inconvenience of returning tot he home country, 3) adjustment applicants and family members ae entitled to employment authorization and permission to travel while the application is pending (assuming there is no unlawful presence which would trigger a bar), and there are more options for reconsideration of an unfavorable decision by USCIS.

In order to qualify for adjustment of status in the US, the applicant must:

A. have been admitted or paroled, or qualify for a special program which negates this requirement. Otherwise, it will be necessary for the applicant to return home to wait for permission to reenter the US.

B. have an immediately available visa number at the time of filing. Certain relatives are classified as an “immediate relative”, and a visa number is available automatically. For example, when a US citizen spouse files for a foreign national beneficiary spouse.  In other cases, depending on the familial relationship, the beneficiary will be categorized in a preference listing, with the practical result being a visa number will not be available for years.

C. be eligible to adjust. In other words, not barred for some reason from adjusting, and having submitted the proper application with supporting documentation, including an Affidavit of Support.

This is where the problem comes in. One of the bars to adjustment of status is having engaged in unauthorized employment on or after January 1, 1977. Unauthorized employment is a bar to adjustment of status to persons who engage in unauthorized employment even after their adjustment application is filed. There is an exception if the applicant has not worked more than 180 days without permission since his or her last entry into the US.

“But wait a minute”, you say. “I thought marriage to a US citizen or permanent resident meant I could get approved.” This is a common misconception. Marriage to a US citizen does not solve all of an applicant’s potential problems to adjustment, but does qualify a person for adjustment (assuming all other conditions are met), even though the foreign national has worked without authorization. That is not true, however, for foreign nationals who marry permanent residents. Working without authorization is a bar to adjustment of status.

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If you sponsor an alien to live permanently in the United States, (i.e., for a green card) by signing an Affidavit of Support you are legally obligated to supporting this individual if the alien receives certain assistance from the government.  The Affidavit, which is Form I-864, is legally binding and commits you from the time the alien arrives in the United States and becomes a lawful permanent resident, until the alien is credited with 40 quarters of work or until he or she becomes a US citizen.

In order to sign the Affidavit, you must be a citizen or national of the United States or an alien lawfully admitted to the United States for permanent residence; at least 18 years old; and domiciled in the United States or its territories and possessions.

The real question is what is meant by the term “financially responsible”? By signing the form, you are agreeing to repay the government for an “means-tested public benefits” received by the alien. This means that if a person receives Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or the State Child Health Insurance Program (CHIP), the agency can request repayment from you, or sue you in court to collect.

Generally, the types of benefits NOT counted as “means-tested” include emergency Medicaid, short-term non-cash emergency relief, services provided under the National School Lunch and Child Nutrition Acts, student assistance under the Higher Education Act and the Public Health Services Act, Head Start programs, immunizations and testing and treatment for communicable diseases, programs under the Elementary and Secondary Education Act and Job Training Partnership Act programs.

The point is, don’t take signing an affidavit lightly.  Ask the questions you need to satisfy yourself in advance.

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However, some individuals have entered the United  States without inspection (EWI) and, as a result may later face a severe penalty and difficulty if they apply for adjustment of status to obtain a green card.

In cases where an arriving foreign national enters the U.S. with inspection, even if he or she presented false documents (such as a false passport or birth certificate), a waiver or excuse may be granted and a green card could later be granted.

There are two exceptions to the EWI penalty

1) Parole into this country, or

2)  Having a receipt of an ‘approvable’  petition filed  with USCIS (formerly INS)  on or before April 30, 2001 ( i.,e, section 245(i) cases).

Some people ask “What if I marry a US Citizen?”

Unfortunately, marriage will not cure the problem. In most cases where an alien spouse entered the U.S. without inspection, the beneficiary would be required to leave this country in order to complete processing in their home country.

Both the immigrant and the citizen must understand that leaving the USA may, depending on how long they remained unlawfully present, result in a bar of up to 10 years before being permitted to return to the USA.

Although a waiver may be available for unlawful presence, a waiver is granted at the discretion of the government and only in cases of hardship. The standard required to prove hardship is high.

Talk with an attorney to determine how long a person would be out of the country waiting on a greed card.  It is important to know how to calculate the dates for filing an application because other relief may be available.

“What if my US Citizen spouse filed for me before April 30, 2001, but we divorced before I got my green card? Can I still use that paperwork?”

Yes , if it can be shown that the marriage was valid at the beginning. and not a sham.  If there is a valid second marriage to a US citizen, it would not be necessary to leave  before receiving a green card.

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But right now we’re talking about obtaining a green card through marriage to a US citizen – we’ll be talking about obtaining green cards by marriage to a LAWFUL PERMANENT RESIDENT a little later.

Obtaining a green card by marriage is where an alien marries a US citizen and thereby becomes eligible to obtain lawful permanent residence in the U.S., that is, a green card. This is completely legal and is provided for by Congress.
So long as you get married for traditional reasons such as love and affection, it’s perfectly OK that your “green card marriage” results in an immigration benefit to you. The only time this poses a problem is where  someone enters into a fake marriage or “sham marriage” that is, one designed solely for the purpose of getting an immigration benefit.

Other problems may occur where the alien spouse entered the U.S. without inspection (EWI)

Get Your Green Card by Marriage Kit Today

If you fall in love, get married, and now want to apply for a green card, that’s great! Congress welcomes you and your legitimate “green card marriage” based on your love and affection for one another.

The green card marriage—when not a sham—is a wonderful thing.

By marring a US citizen you’ll be considered an immediate relative and “immediately eligible” to apply for a green card. If you entered the United States legally, that is, with inspection, even if you overstayed, you may adjust status and obtain your green card without ever having to leave the United States.

And, if you’re outside the United States, you will be processed at an Embassy or US consular office in your country… or you may apply for a K visa to come to the US to adjust status right here in the U.S.

This is often a better option, particularly if you want to commence your new life in America as soon as possible.

Now, let’s assume that you’re married to a US citizen and that you apply for and receive your green card…what’s next? Your green card will entitle you to live and work legally in the United States. And to travel freely to and from the United States – be careful with travel though - if you’re away from the US for long periods of time you may be deemed to have abandoned your green card.

If you plan to leave the U.S for extended period of time, you’ll be well advised to consult with an immigration attorney.

That aside, your new green card status gives you nearly all the benefits of US citizenship, though you’re not a US citizen and should never claim to be a US citizen—that’s illegal. After three years of marriage, you will be eligible to apply for US citizenship if you wish!

One other thing you’ll need to know is about Conditional Permanent Residence.

If you have been married for less than two years when your green card marriage spouse is granted a green card, he or she will receive conditional permanent residency. You must apply to remove conditional status within 90 days before the 2-year anniversary of the award date of your spouse’s conditional legal permanent resident status.

Failure to do this can have serious consequences and you could even loose your status and be removed from the United States. So, if you receive a conditional green card, mark the date on your calendar and remember to apply to have the conditions removed 90 days before. Or better yet, consult with an immigration lawyer to be sure!

BY the way, aside from the fact that your green card is “CONDITIONAL” it is the same as any other green card and you get all the same benefits any other green card holder receives. If you’re married for two years or more at the time your green card is issued, you should receive a green card without the conditions.

If you marry someone who is not a US Citizen, but rather is a Lawful Permanent of the United States, this too is a path to obtaining your green card. And, as with marriage to a US Citizen, your marriage must be a real one, it cannot be one that is a sham and designed only to obtain an immigration benefit—It must be based on traditional values such as Love & Affection.

One of the main differences is that when you marry a US citizen you are considered to be an “Immediate Relative and thus immediately eligible for a green card. Marriage to a permanent resident does not make you an “immediate relative” So, you’ll have to wait a little longer to get your green card, probably several years. But, assuming you meet all other eligibility requirements, you can obtain a green card by marriage to LAWFUL PERMANENT RESIDENT green card holder.

One common misconception I need to discuss here: Your LAWFUL PERMANENT RESIDENT spouse filing a petition for you does not, in and of itself, grant you any immediate rights to live and work in the United States – that will come later. This is one of the harsh differences between marriage to a US Citizen and marriage to a LAWFUL PERMANENT RESIDENT or green card holder.

When the spouse of a US citizen files a petition rights start to accrue almost immediately. For example, he or she can apply for a work permit and Social Security card even before being issued their new green card.

Green Card by Marriage

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Can you lose your green card privileges? The answer is, unfortunately, yes. A “green card,” or rather, a lawful permanent residence card is issued to allow holders to live and work in the United States. It is not to be used as an enhanced tourist visa. It is not uncommon for green card holders to return to their county for a visit, staying longer than planned—and end up losing their green card privileges.

Typically a green card holder who has been abroad for more than a year may face questioning by an immigration officer when returning to the U.S. The answers to those questions may lead to immigration removal proceedings on the grounds of having abandoned their permanent residence status.

It is important to remember that as a permanent resident, you must actually intend to live and work in the U.S. Knowing this it is important not to remain outside the U.S. for extended periods of time and risking the government’s concluding your intending to abandoning you lawful permanent residence status

How Long an Absence is Too Long?
Unfortunately there is no clear cut answer. Many people believe staying outside the country for one year will trigger issues of abandonment of their green card, but this is not actually true. The law does not in fact specify a particular period of absence. While it is true that the one year rule is a good benchmark, it is important to understand that one’s absence from the U.S. for less than one year may lead to a finding of abandonment while another’s absence of more than one year may not.

The reason for this is that the law actually looks to one’s intent rather than a specific period of absence. That said, an absence of one year or more would certainly be a factor in considering whether or not a green card holder had the intent to abandon his or her permanent residence status. The key to avoiding or prevailing on the abandonment issues then turns to establishing that the absence was for a temporary visit only and that there was no intent to abandon lawful permanent residence status. The actual time spent abroad is but one factor, albeit an important one, in determining one’s intent.

Factors in Determining Abandonment of One’s Green Card
In avoiding and/or defending a charge of abandonment of green card privileges, it then becomes important to know some factors the government will consider in determining one’s intention:

• Temporary Purpose of Trip Abroad
• Employment
• Family Ties in the U.S.
• Maintaining a Home in the U.S
• Financial Ties in the U.S. (.e.g., bank account, real property)

Can a Reentry Permit Help?
While obtaining a reentry permit is not an absolute guaranty that you will not be challenged with abandonment of permanent residence, but rather makes it less likely. You should always be prepared to demonstrate as many of the factors described above should you be faced with defending your green card status. With this in mind, if you intend to make a trip outside the U.S. in excess of one year, it is advisable you consider obtaining a reentry permit. A reentry permit may be obtained by filing form I-131, however, you must file while actually physically present in the U.S. The permit itself, which is valid for two years, may actually be picked up abroad at a consular office.

Finally, it is also important to note that your time outside the U.S. will generlly not count as ‘physical presence time for purposes of filing for naturalization.

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