Adjustment of Status While in Removal Proceedings

Can someone adjust status while in removal proceedings?

See USCIS vs. Immigration Judge Jurisdiction.

Immigration judge jurisdiction

8 C.F.R. §1245.2(a)(1)(i) generally gives the immigration judge exclusive adjustment jurisdiction over a non-arriving alien placed in removal proceedings.

The immigration judge can adjudicate:

• INA §245(a) eligibility;
• INA §245(i);
• INA §245(k);
• Applicable adjustment bars;
• Visa availability;
• Admissibility;
• Qualifying waivers within court jurisdiction;
• Form I-864 sufficiency where applicable;
• Evidence and credibility; and
• Adjustment discretion.

Arriving aliens are an important exception

Arriving aliens generally remain under USCIS adjustment jurisdiction even when removal proceedings are pending.

See Arriving Alien Adjustment of Status Jurisdiction.

Underlying immigrant basis

The respondent must possess a legally sufficient immigrant basis.

Common examples include:

• Approved immediate-relative Form I-130;
• Approved family-preference Form I-130;
• Approved employment Form I-140;
• Approved VAWA Form I-360;
• Approved special immigrant petition;
• Qualifying INA §245(i) grandfathering; and
• Other adjustment classifications within immigration judge jurisdiction.

Pending Form I-130

A respondent married to a U.S. citizen or LPR may have a Form I-130 pending with USCIS while removal proceedings continue.

The respondent may request time for USCIS adjudication based on factors such as:

• Prima facie approvability of the petition;
• Whether approval would materially affect adjustment eligibility;
• Visa availability;
• DHS position;
• Respondent's diligence;
• Number and length of prior continuances; and
• Efficient case management.

A pending petition does not automatically require the immigration judge to continue the case indefinitely.

Marriage entered during proceedings

INA §245(e) imposes a special restriction on adjustment based on a marriage entered while specified immigration proceedings are pending.

The bona fide marriage exception generally requires clear and convincing evidence that:

• The marriage was entered in good faith;
• The marriage was not entered to obtain immigration benefits; and
• The statutory exception is otherwise satisfied.

See Marriage During Removal Proceedings.

Visa availability

Preference-category respondents must have an immigrant visa immediately available at the time adjustment is granted.

The court should evaluate:

• Priority date;
• Preference category;
• Country of chargeability;
• Current Visa Bulletin;
• Final Action Date; and
• Derivative eligibility.

Admission or parole

An ordinary INA §245(a) respondent must generally establish inspection and admission or parole unless another statutory adjustment route applies.

Evidence can include:

• Form I-94;
• Passport stamps;
• CBP records;
• Parole documents;
• Government records;
• Wave-through evidence;
• Witness testimony; and
• Other reliable proof.

See Evidence of Admission or Parole.

INA §245(i)

Some respondents who entered without inspection or are otherwise barred under ordinary INA §245(a) can adjust under INA §245(i) if properly grandfathered and all other requirements are satisfied.

The court may need to determine:

• Qualifying petition or labor certification;
• Filing date;
• Approvable-when-filed requirement;
• Physical-presence requirement where applicable;
• Derivative grandfathering;
• Visa availability;
• Supplement A and penalty fee; and
• Admissibility.

See INA §245(i).

INA §245(k)

Qualifying employment-based respondents can invoke INA §245(k) before the immigration judge.

The respondent may need to establish that after the relevant lawful admission, aggregate periods of:

• Failure to maintain lawful status;
• Unauthorized employment; and
• Other violations of admission terms

did not exceed 180 days.

See INA §245(k).

Admissibility

The respondent must establish admissibility as a permanent resident unless a waiver or exception applies.

Common court issues include:

• CIMTs;
• Controlled-substance offenses;
• Drug-trafficking reason-to-believe findings;
• Fraud or misrepresentation;
• Unlawful presence;
• Prior removal;
• Alien smuggling;
• False citizenship claims;
• Public charge where applicable; and
• Security grounds.

Waivers in court

Where jurisdiction exists, a respondent can seek qualifying waivers together with adjustment.

Depending on the case, that can include:

• INA §212(h);
• INA §212(i);
• Other statutory waivers within immigration judge jurisdiction; and
• Related discretionary relief.

Each waiver has its own qualifying-relative, hardship, rehabilitation and discretionary requirements.

Current Form I-485 filing procedure in immigration court

EOIR currently instructs respondents seeking adjustment to:

• Complete Form I-485;
• File the application with the appropriate immigration court;
• Serve a complete copy on ICE Office of the Principal Legal Advisor;
• Comply with current filing-fee procedures;
• Provide the required copy and payment information to USCIS under the current pre-order instructions;
• Complete biometrics and background checks; and
• File proof of fee and biometrics compliance with the immigration court as directed.

Biometrics and background checks

8 C.F.R. §1003.47 requires completion of identity, security and background checks before the immigration judge grants certain forms of relief.

Failure to comply can result in:

• Delay;
• Finding that the application was abandoned;
• Inability of the immigration judge to grant relief; or
• Other procedural consequences.

Keep evidence showing completion of the USCIS biometrics process.

Individual merits hearing

The immigration judge can take testimony concerning:

• Entry;
• Marriage;
• Employment;
• Criminal history;
• Immigration history;
• Fraud allegations;
• Waiver hardship;
• Rehabilitation;
• Discretionary equities; and
• Any other disputed adjustment issue.

DHS counsel may cross-examine the respondent and witnesses.

Discretion

Even after establishing statutory eligibility, the respondent must demonstrate that adjustment should be granted as a matter of discretion.

Positive equities can include:

• U.S. citizen family;
• LPR family;
• Long residence;
• Employment history;
• Community service;
• Rehabilitation;
• Medical needs;
• Military family ties;
• Property and tax history; and
• Other humanitarian factors.

Adverse factors should be addressed directly.

If USCIS Already Denied the Form I-485

A respondent whose Form I-485 was already denied by USCIS presents a more specific post-denial issue than a person simply seeking adjustment while removal proceedings are pending.

Where the regulations permit renewal, the respondent may be able to present the adjustment application again before the immigration judge. The strategy should begin with the actual USCIS denial and determine which factual or legal findings must be overcome in the renewed proceeding.

See Renewing Adjustment of Status in Removal Proceedings for that post-denial analysis.

If the immigration judge grants adjustment

Once the grant becomes administratively final:

• The respondent becomes a lawful permanent resident;
• Removal proceedings are resolved consistent with the grant;
• USCIS updates the immigration record;
• USCIS produces evidence of status; and
• The new resident should monitor Permanent Resident Card production.

USCIS maintains post-order procedures for individuals granted adjustment by EOIR.

If the immigration judge denies adjustment

The respondent may generally appeal the immigration judge's final decision to the Board of Immigration Appeals within the applicable deadline.

The appeal record can include disputes concerning:

• Adjustment eligibility;
• Admissibility;
• Waivers;
• Evidentiary rulings;
• Credibility;
• Visa availability;
• Discretion; and
• Legal interpretation.

Example: EWI respondent grandfathered under §245(i)

Example: approved I-130 but visa unavailable

Removal-proceedings adjustment checklist

• Confirm immigration judge jurisdiction.
• Determine whether respondent is an arriving alien.
• Review NTA and removability charges.
• Confirm immigrant petition status.
• Confirm priority date and visa availability.
• Analyze INA §245(a).
• Analyze INA §245(c).
• Analyze INA §245(i).
• Analyze INA §245(k).
• Analyze admissibility.
• Prepare required waivers.
• Prepare Form I-864 where required.
• Follow current EOIR filing-fee procedure.
• Serve ICE counsel.
• Follow USCIS pre-order instructions.
• Complete biometrics.
• Meet court filing deadlines.
• Prepare testimony and exhibits.
• Prepare favorable discretion evidence.

Common court-adjustment mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions