Marriage During Removal Proceedings and Adjustment of Status

INA §245(e)

INA §245(e)(1) generally prevents adjustment under §245(a) when the immigrant visa basis arises from a marriage entered during the period in which administrative or judicial proceedings concerning the person's right to be admitted or remain in the United States were pending.

INA §204(g) separately restricts the immigrant petition

INA §204(g) addresses the Form I-130 or other qualifying petition itself.

A marriage entered during the covered proceedings period generally cannot support approval of immediate-relative or family-preference immigrant classification unless:

• The bona fide marriage exception under INA §245(e)(3) is established;
• The beneficiary has resided outside the United States for the required two-year period after the marriage; or
• Another regulatory event removes the prohibition.

When does the prohibited proceedings period begin?

8 C.F.R. §245.1(c)(8) defines commencement of the relevant proceedings period.

For modern removal proceedings, the period generally begins when Form I-862, Notice to Appear, is filed with the Immigration Court.

The regulation also addresses older procedural documents and expedited removal, including:

• Historical Orders to Show Cause;
• Historical Form I-122 exclusion proceedings;
• Form I-862 filed with the Immigration Court; and
• Issuance and service of Form I-860 in expedited-removal cases.

When does the proceedings period end?

The adjustment regulation identifies events that terminate the prohibited proceedings period.

These include circumstances such as:

• Departure while an outstanding removal, deportation, or exclusion order remains in effect;
• A determination that the person is not inadmissible or deportable;
• Cancellation of the charging document;
• Termination of proceedings by the Immigration Judge or BIA; or
• Specified successful federal judicial review.

Marriage after a final removal order can still fall within the rule

A final administrative order does not necessarily mean the proceedings period has ended for purposes of INA §245(e) and the implementing regulation.

Where a final order remains outstanding and the person remains in the United States, the regulatory termination events should be reviewed before concluding that a later marriage falls outside the restricted period.

The bona fide marriage exception

INA §245(e)(3) creates the principal exception to both the adjustment restriction and the related INA §204(g) petition restriction.

The applicant must establish by clear and convincing evidence that:

1. The marriage was entered in good faith;
2. The marriage was valid under the law of the place where it occurred;
3. The marriage was not entered for the purpose of procuring admission as an immigrant; and
4. No prohibited fee or other consideration was given for filing the qualifying petition.

The Bona Fide Marriage Exception Requires Heightened Proof

A marriage entered during the covered proceedings period is not automatically considered fraudulent. INA §245(e)(3) provides an exception when the applicant establishes the qualifying marriage by clear and convincing evidence.

The exception requires proof that the marriage was entered in good faith, was legally valid where celebrated, was not entered for the purpose of obtaining immigrant admission, and did not involve prohibited consideration for filing the qualifying petition.

For the statutory elements and the procedure for requesting the exception with Form I-130 and Form I-485, see Bona Fide Marriage Exception Under INA §245(e)(3).

For detailed guidance on relationship chronology, joint residence, financial records, tax documents, communications, affidavits, interviews, RFEs and NOIDs, see Clear and Convincing Evidence for Marriages During Removal Proceedings.

How to request the INA §245(e) exemption

8 C.F.R. §245.1(c)(8)(iv) states that no separate application or fee is required to request the bona fide marriage exemption for adjustment.

The request should be made in writing and submitted with Form I-485.

The written request should:

• Identify INA §245(e)(3);
• Explain why the marriage falls within the exception;
• Describe the relationship chronology;
• Address the date proceedings began;
• Address the date of marriage;
• Identify supporting documentary evidence; and
• Expressly argue the clear-and-convincing evidence standard.

Effect of an approved I-130 under the bona fide marriage exception

The regulation provides that approval of the visa petition under the bona fide marriage exception is primary evidence of eligibility for the corresponding INA §245(e) exemption.

The adjustment applicant ordinarily should not be required to prove the same exception from the beginning again unless the adjudicator determines additional evidence is needed.

The two-year residence-abroad alternative

INA §204(g) provides another route for petition approval after a proceedings marriage where the beneficiary has resided outside the United States for a two-year period beginning after the marriage.

The adjustment regulation likewise recognizes residence outside the United States for two or more years following the marriage as an exemption from the proceedings-marriage prohibition.

Continuance while the I-130 is pending

Where removal proceedings remain pending and USCIS has jurisdiction over the Form I-130, the respondent may seek a continuance to allow USCIS to adjudicate the petition.

Matter of Hashmi identified factors relevant to family-based continuances, including:

• DHS's position;
• Whether the I-130 appears prima facie approvable;
• Whether the respondent appears statutorily eligible for adjustment;
• Whether adjustment would warrant favorable discretion; and
• Procedural considerations.

Matter of L-A-B-R- later emphasized that an immigration judge must primarily consider:

1. The likelihood the collateral benefit will be granted; and
2. Whether that benefit would materially affect the outcome of removal proceedings.

Diligence, administrative efficiency, prior continuances, DHS's position, and the expected duration of the requested continuance remain relevant secondary factors.

Motion to reopen based on a marriage entered during proceedings

Matter of Velarde-Pacheco establishes an important framework for a timely motion to reopen seeking adjustment based on a marriage entered after proceedings began, even where the I-130 remains pending.

Relevant considerations include:

• The motion is timely;
• The motion is not numerically barred;
• No other procedural bar prevents reopening;
• The respondent presents clear and convincing evidence indicating a strong likelihood that the marriage is bona fide; and
• The immigration court or BIA evaluates any DHS opposition on its merits.

USCIS and immigration-court jurisdiction

Proceedings-marriage cases commonly involve divided jurisdiction.

In many cases:

• USCIS adjudicates Form I-130;
• The Immigration Judge adjudicates Form I-485 for a non-arriving respondent in removal proceedings;
• USCIS may retain adjustment jurisdiction for certain arriving aliens; and
• The BIA or Immigration Judge may adjudicate a motion to reopen or remand.

INA §245(e) is different from INA §204(c)

A marriage entered during removal proceedings is not automatically a fraudulent marriage.

INA §204(g) and §245(e) impose a heightened evidentiary requirement because of the timing of the marriage.

INA §204(c), by contrast, creates a far more serious petition bar when there is substantial and probative evidence that the beneficiary previously entered, attempted, or conspired to enter into a marriage to evade immigration law.

Adjustment discretion after the bona fide exception is established

Proving the bona fide marriage exception resolves the statutory proceedings-marriage restriction. It does not guarantee adjustment approval.

USCIS or the immigration judge may separately consider adjustment discretion where applicable, including:

• Family ties;
• Length of residence;
• Immigration violations;
• Criminal history;
• Evidence of rehabilitation;
• Employment history;
• Humanitarian circumstances;
• Compliance with immigration proceedings;
• Representations made to immigration authorities; and
• Other positive or negative factors.

Frequently asked questions