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Petitioning for your Spouse While He or She is in Removal Proceedings

Petitioning for your Spouse While He or She is in Removal Proceedings

Posted by: ScottMond Law Firm
September 04, 2012
Topic: Family Law & Immigration

Often our U.S. Citizen clients marry or are engaged to a non- U.S. citizen who is suddenly thrust into Immigration Removal Proceedings for a variety of reasons. A Notice to Appear (NTA) is what U.S. Immigration Court issues to initiate removal proceedings against an individual for a variety of reasons. Removal proceedings may be initiated by the Government due to a prior criminal history, or overstaying a visa.

If a couple who is dating or engaged discovers that an NTA has been issued against the foreign national partner, this will often fast track our clients' plans for marriage. The couple quickly marries in hopes of finding legal relief.

The following is a list of tips or steps to follow if one finds themselves in this situation:

  1. An I-130 filed on behalf of your new spouse will not resolve the situation, but it is a good start. Consult with experienced U.S. Immigration counsel to determine if any U.S. Waivers will be required.
  2. A spouse who overstayed his or her visa is able to adjust status in the United States, usually. However, someone who enters the U.S. without inspection will most likely need to processes at a consulate abroad.
  3. It is important to understand that the I-130 is adjudicated by U.S. Citizenship and Immigration Services (USCIS), while the 2nd step, I-485- Adjustment of Status is often adjudicated in front of the Immigration Judge.
  4. In some situations, the filing of an I-130 and subsequent approval allows an Immigration Attorney to request that a Case be Terminated . However, there are pros and cons to requesting a Judge terminate instead of having the I-485 approved in court.
  5. The Attorney for USCIS Department of Homeland Security (DHS) can be key in getting an I-130 adjudicated quickly. Often, when an I-130 is filed after removal proceedings have been initiated, it can take a couple years for the I-130 to be decided which is problematic. However, when an immigration attorney contacts the DHS attorney and respectfully requests they have the case transferred timely to USCIS, and monitored for progress, the waiting time can be reduced to a few months.
  6. A U.S. Citizen or Permanent Resident may file the I-130, however, the Permanent Resident who files for his or her spouse will have more hurdles to overcome in a "defensive" I-130 application.

Overall, when a U.S. Citizen or Permanent Resident files for his or her spouse while in removal proceedings, the process is now defensive and not a normal application process. It requires experienced immigration counsel and the attorneys for DHS work together for the most favorable outcome and relief from deportation and removal. If you have any questions regarding this process you may contact our office at [email protected] or call one of our offices conveniently listed at

ScottMond Law Firm
Members of the American Immigration Lawyers' Association (AILA)

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