If deportation proceedings have begun against a person, marriage to a U.S. citizen can become grounds for protection, but only if the person entered legally and with inspection. The complication is that USCIS cannot review a green card application while the case is in court, and an immigration judge is not required to wait for a decision on the I-130 petition. If the applicant files an asylum application with USCIS and is not in removal proceedings, a marriage-based adjustment of status petition can be filed in parallel with the asylum review.

When marriage can become a defense against deportation

In the case described, if a person entered on a visa or was paroled or underwent some form of inspection, marriage to a U.S. citizen makes them eligible for adjustment of status. However, while in deportation proceedings, the path becomes more complicated: you cannot simply file a family petition I-130 and form I-485 simultaneously with USCIS. An exception is noted for cases where the Notice to Appear states that the person is an arriving alien.

The general scheme is as follows: first the I-130 is approved, then the immigration judge is informed that the deportation proceedings need to be terminated so that the I-485 can be filed with USCIS. Specific timelines may not align: approval of the I-130 may take longer than the judge is willing to wait. In that case, one will have to defend by other means, for example an asylum application, which for most people is a dead end, since the chances of success are low.

What has changed for court cases

Previously, such a marriage, provided it was genuine, was considered a fairly reliable basis for protection. Now immigration judges no longer have the authority to delay proceedings to give USCIS time to review the I-130 petition. So there are workaround strategies, but they don’t always work.

Sequence of actions during deportation proceedings

General scheme as described in the material

  1. Step 1Approval of the I-130 petition (marriage to a U.S. citizen)
  2. Step 2Notifying the immigration judge of the intent to terminate deportation proceedings
  3. Step 3Filing I-485 with USCIS

Asylum application without a court case

If a person entered, for example, on a tourist visa and filed an asylum application with USCIS on their own initiative, they are not in deportation proceedings. In this case, a marriage-based adjustment of status can be filed at the same time as the asylum case is pending, provided all other requirements are met. The asylum application remains pending; nothing happens to it.

The asylum application should not be withdrawn until permanent residency has already been approved. If the green card is denied for some reason, the asylum application remains a backup plan.

An immigration court building in an American city, a short line of people at the entrance