Can You Adjust Status While in Removal Proceedings?

Jul 4, 2024 — by Miguel, criminal immigration lawyer in New York and New Jersey As an immigrant, navigating the complex and ever-changing immigration laws can be overwhelming and confusing. One of the most common questions that arise is whether an individual can adjust their status while in removal proceedings. The answer to this question is not a simple yes or no, as it depends on various factors. In this article, we will explore the concept of adjusting status while in removal proceedings and provide a comprehensive guide for those facing this situation.

Understanding Adjustment of Status

Definition of Adjustment of Status

Adjustment of status is the process of changing an individual’s immigration status from non-immigrant to immigrant while they are physically present in the United States. This change allows individuals who are already in the U.S. on a temporary basis, such as students, tourists, or workers, to apply for permanent residency (a green card) without needing to return to their home country. Essentially, it’s a route for immigrants to become permanent residents.

Significance of Adjustment of Status

This process is incredibly significant for the individuals who choose it. It is a highly sought-after option for many immigrants, as it eliminates the need for consular processing, which can be time-consuming and risky. The convenience and safety of staying within the United States during the entire procedure cannot be overstated. No one wants to uproot their life, risk denial abroad, or endure the financial and emotional burden of separation from their family.

Benefits of Adjustment of Status

One of the main benefits of adjusting status is that it simplifies the immigration process. This process allows an individual to obtain a green card without having to leave the country. Avoiding international travel and the uncertainties associated with consular processing can bring immense relief. There’s also the added benefit of potentially faster processing times, allowing individuals to start their new chapter as permanent residents more swiftly. Beyond convenience, this process can often mean that applicants can remain in their jobs, keep their homes, and maintain their community ties while their applications are being processed. This stability is invaluable for many immigrants seeking to build a life in the United States.

Challenges of Consular Processing

In contrast, consular processing involves numerous hurdles. Consular processing can be time-consuming and risky. This statement underscores the uncertainties and delays that come with it. Applicants must travel back to their home countries for interviews at a U.S. consulate or embassy. During this period, there’s no guarantee of re-entry, and any issues or delays can lead to significant disruptions in their lives. Furthermore, the separation from family, potential loss of employment, and the financial burden of travel can add layers of stress. The risk of visa denials or administrative processing at consulates can leave applicants in limbo, unable to return to the United States. In essence, adjusting status while staying in the U.S. offers a safer, more streamlined, and often speedier path to permanent residency. By understanding and navigating this process, many immigrants find a way to secure their future in a country they hope to call home.

What are Removal Proceedings?

Removal proceedings, also known as deportation proceedings, are legal proceedings initiated by the United States government to determine an individual’s eligibility to remain in the country. These proceedings are typically initiated when an individual is suspected of violating immigration laws or overstaying their visa. The goal of removal proceedings is to determine whether an individual should be allowed to stay in the United States or be removed from the country.

Can You Adjust Status While in Removal Proceedings?

The short answer is yes, it is possible to adjust status while in removal proceedings. However, the process is not as straightforward as it may seem. The ability to adjust status while in removal proceedings depends on various factors, including the individual’s immigration status, eligibility for a green card, and the reason for being in removal proceedings.

Immigration Status

The first factor to consider is the individual’s immigration status. If an individual is in the United States on a valid non-immigrant visa, such as a student or work visa, they may be eligible to adjust their status while in removal proceedings. However, if an individual entered the country illegally or overstayed their visa, they may not be eligible for adjustment of status.

Eligibility for a Green Card

Another crucial factor is an individual’s eligibility for a green card. To adjust status, an individual must have a valid basis for obtaining a green card, such as through employment, family sponsorship, or refugee/asylum status. If an individual does not have a valid basis for a green card, they may not be able to adjust their status while in removal proceedings.

Reason for Being in Removal Proceedings

The reason for being in removal proceedings is also a significant factor in determining whether an individual can adjust their status. If an individual is in removal proceedings due to a criminal conviction or other immigration violations, they may not be able to adjust their status. However, if an individual is in removal proceedings due to an expired visa or minor immigration violations, they may still be eligible to adjust their status.

How to Adjust Status While in Removal Proceedings

If an individual meets the eligibility requirements for adjusting status while in removal proceedings, they must follow specific steps to do so. The first step is to file an application for adjustment of status with the United States Citizenship and Immigration Services (USCIS). This application must be accompanied by all necessary supporting documents, such as proof of eligibility for a green card and evidence of being in removal proceedings.

Gathering Required Documentation

Gathering the required documentation is one of the critical steps in the adjustment of status process. This typically includes but is not limited to:

1. Proof of Eligibility for Green Card: Documents supporting your eligibility, such as employer sponsorship forms, family petitions, asylum/refugee status documents, etc.

2. Proof of Current Immigration Status: If applicable, documents showing your current valid non-immigrant status.

3. Proof of Entry into the U.S.: Documents like Form I-94 or any other entry documentation.

4. Evidence of Being in Removal Proceedings: Notice to Appear (NTA), court hearing notices, etc.

5. Personal Identification Documents: Passport, birth certificate, etc.

Filing the Application

Once all the documents are gathered, the next step is to file Form I-485 (Application to Register Permanent Residence or Adjust Status) with USCIS. Ensure the application is duly filled and all supporting documentation is attached. Any errors or omissions could lead to delays or even denial.

Attending Biometrics Appointment

After filing the application, applicants will receive a notice from USCIS for a biometrics appointment. This involves providing fingerprints, photographs, and signatures. This step is crucial as it allows USCIS to conduct necessary background checks.

Preparing for the Immigration Hearing

Once the application is filed, the individual must attend a hearing before an immigration judge. This is where thorough preparation becomes crucial. Consult with an experienced immigration attorney to ensure all aspects of your case are covered. During this hearing, the judge will review the application and determine whether the individual is eligible for adjustment of status.

Attending the Immigration Hearing

On the scheduled date, attend the hearing before the immigration judge. Present your case and all supporting documents. Be prepared to answer any questions the judge might have regarding your eligibility and situation. If the judge approves the application, the individual will be granted a green card, and their removal proceedings will be terminated. However, if the judge denies the application, the individual may be subject to removal from the country.

Post-Hearing Processes

If approved, applicants may still need to go through additional administrative processes. This could involve receiving the official Green Card and ensuring all immigration records are updated. Keep in touch with your immigration attorney for guidance through these steps.

Conclusion

Navigating the process of adjusting status while in removal proceedings is undoubtedly complex and challenging. However, it is possible, provided the individual meets specific eligibility criteria and follows the correct steps meticulously. Consulting with an experienced immigration attorney is paramount to determine eligibility and successfully navigate the process. Additionally, individuals must ensure they have a valid basis for a green card and are in removal proceedings for minor immigration violations to increase their chances of success. By understanding and effectively managing this process, many immigrants can find a way to secure their future in the United States.

FAQs

1. Can I adjust my status if I entered the country illegally? If you entered the country illegally, you may not be eligible to adjust your status while in removal proceedings. However, you may be able to apply for a green card through other means, such as marriage to a U.S. citizen.

2. How long does the adjustment of status process take? The adjustment of status process can take anywhere from several months to a year or more, depending on various factors, including the individual’s immigration status and the backlog of cases at USCIS.

3. Can I appeal if my application for adjustment of status is denied? Yes, you can appeal the decision if your application for adjustment of status is denied. It is crucial to consult with an immigration attorney to determine the best course of action in this situation.

4. What is the importance of an immigration attorney in this process? An immigration attorney can provide expert guidance, help gather necessary documentation, prepare for the immigration hearing, and increase the chances of a successful outcome. Their expertise is invaluable in navigating the complexities of the process.

5. What supporting documents do I need for adjustment of status? Supporting documents typically include proof of eligibility for a green card, proof of current immigration status, evidence of being in removal proceedings, personal identification documents, and any other relevant documentation to support your case.

6. Can marriage to a U.S. citizen help me adjust my status in removal proceedings? Yes, marriage to a U.S. citizen can be a valid basis for adjusting status. However, you must still meet all other eligibility criteria and follow the necessary steps.

7. What happens if the immigration judge denies my application? If the judge denies your application, you may be subject to removal from the country. You can appeal the decision, and it is essential to consult with an immigration attorney to explore your options.

8. How does consular processing differ from adjusting status within the U.S.? Consular processing requires applicants to return to their home country for a visa interview at a U.S. consulate or embassy, which can be time-consuming and risky. Adjusting status allows individuals to complete the process while staying in the U.S., offering convenience and safety.

9. What are the risks of consular processing? The risks of consular processing include the possibility of visa denials, administrative processing delays, separation from family, potential loss of employment, and the financial burden of travel.

10. Can I continue working while my adjustment of status application is pending? Yes, in many cases, individuals with pending adjustment of status applications can apply for a work permit (Employment Authorization Document) to continue working legally in the U.S. Consult with an immigration attorney for specific guidance based on your situation.