The I-130 and I-485 Process for a Foreign National Who Marries a U.S. Citizen While in Removal Proceedings
Here is a posting on the basics of a foreign national who is placed in removal proceedings but who then marries a U.S. citizen.
Basically, the law says that when a foreign national marries a U.S. citizen after having been placed in removal proceedings, he or she cannot adjust their status to permanent residency until the foreign national resides outside the U.S. for a two year period beginning after the date of the marriage—something that clearly creates a great hardship for any such married couple. Fortunately, the law also allows for a “waiver” of this requirement if the couple can show by clear and convincing evidence that the marriage was entered into in good faith and that it was not entered into simply for the purpose of obtaining permanent residency for the foreign national. That is, is it a bona fide marriage?
The process for filing the I-130 Petition for Alien Relative and the I-485 Application to Register Permanent Residence is different in this situation than it is for a couple who marry outside the removal proceeding context. When the foreign national is in removal proceedings in Immigration Court . . .
. . . the I-130 and I-485 cannot be filed concurrently; in fact, the Immigration Court has no authority to even consider the I-130 for approval. The I-130 has to be filed with the USCIS (and the filing instructions are very specific in this situation) and the I-485 has to be filed with the Immigration Court (and the filing instructions and feeing in the I-485 are also very specific in this situation).
One problem, however, can be that it may take the USCIS many many months to consider and then approve the I-130 and the Immigration Judge can’t hold a hearing on the I-485 until after the I-130 is approved. Furthermore, the Immigration Judge is not required to grant a continuance of the removal proceedings while everyone waits for the USCIS to schedule an I-130 interview for the married couple.
Ideally, the I-130 receipt notice is issued promptly by the USCIS which then allows for the I-485 to be fee’d in. Once the I-485 is fee’d in and a receipt notice is obtained, then, EAD can be applied for and work authorization will be given in about 90 days. After the I-130 marriage interview, assuming the I-130 is approved, the I-485 adjustment of status hearing can be scheduled by the Immigration Court.
The process is tricky and deadline oriented and mistakes can result in applications being denied at worst and, at least, delayed.
