Let’s say you are in removal proceedings due to an overstay. Maybe you have an asylum application with the immigration court, or a cancellation of removal application, and during proceedings you got married to a US Citizen, or are the beneficiary of another I-130 petition, or even an I-360 self-petition.
And let’s say you are not otherwise inadmissible – no criminal record that would disqualify you from permanent residency, never had a false claim to US Citizenship (such as checking that you are a US Citizen on the I-9 form). And if not for removal proceedings (245i may have to apply in certain circumstances), would have been eligible for adjustment of status.
For those that get married in good faith after removal proceedings were initiated, it’s possible for you to be the beneficiary of an I-130 immigrant petition filed by your US Citizen spouse. You have to take note that the burden is higher when the marriage occurred after removal proceedings were commenced, and I-130s in this route are only approved if that higher burden is met. A bona fide marriage exception letter must be included as well as evidence of your bona fide relationship. It is common for the husband and wife to be separated at I-130 interviews in these cases. Some undergo what’s called the Stokes interview also, which is an intensive interview session where both parties are separated.
But what if the I-130 is approved? Or if there are other petitions approved, which are current, and which makes you eligible for adjustment but for removal proceedings.
Of course there are many factors involved, and the results depend on whether the DHS agrees and of course whether the Immigration Judge agrees too. Usually when the DHS agrees or does not oppose termination, the Immigration Judge will grant termination, but it’s never a certainty. Some Judges would still want the adjustment of status adjudicated in Court, which is fine. Some though would actually be happy to terminate it, as it lightens their docket.
Our firm has done a couple termination cases recently on situations similar to the above (case for asylum or other relief pending, legal entry overstay, married a US Citizen or beneficiary of other types of petition, family or otherwise).
So one thing that could be done is the filing of a Request to Join in a Motion to Terminate with the DHS, in which after they agree, the Joint Motion would then be filed with the Immigration Judge. Proceedings will then be likely terminated for you to apply for adjustment of status with the CIS. Procedurally that is the proper way to do it.
A Motion to Terminate filed with the Immigration Judge with service to the DHS will still yield on the DHS’s response on whether they oppose or not.
And in both instances above, not just the I-130 approval should be attached, but also as much of the I-485 supporting documents (and the 485s itself) to show the applicant’s eligibility.
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