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Marrying a US Citizen While Being Deported

What happens if I marry a US citizen while in deportation? Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States at our offices in St. Louis, San Diego, and Washington DC. With the immigration court backlog at a record high level, it should be no surprise that sometimes people that find themselves in deportation fall in love with a US citizen. And in this video, we’re going to talk about what happens in that scenario. So this is where someone is actually in removal proceedings. They have the deportation proceedings pending against them. They have some future court date. It might be a master calendar hearing. It might be an individual hearing. And they find themselves falling in love and marrying a US citizen. Now, the first thing that you need to know is that it has to be a real marriage. It has to be a marriage based on love and admiration, and not just to help keep the person from being deported.

You can’t marry someone just to be a friend or to do a favor. And we actually have people who sometimes call the office and said, yeah, I’m trying to help out my friend. No, that’s not how it works. It has to be a real legitimate marriage. And in fact, if a foreign national who’s in deportation does marry a US citizen and applies for an immigration benefit, they are actually held to a higher standard. They have to apply for something called the good faith marriage exemption, and the good faith marriage exemption says that even though I’m in deportation, I’m going to be able to prove by clear and convincing evidence. So usually it’s your burden of proof. Say, 51% here. You have to show it by clear and convincing evidence, which means you have a higher standard to prove that the marriage is legitimate.

Think of it this way, USCIS, which is the agency that’s going to decide the I130, they view your marriage skeptically. They don’t believe it. They think you’re doing it just to convey an immigration benefit or to receive an immigration benefit. And so they’re going to make you submit even more evidence and to tell an even more compelling story. Now we’ve had plenty of cases where the beneficiary is in deportation, get approved and the US citizen and the beneficiary did that by filing tons of marital evidence. They usually have a long relationship and they have a long history together. And what happens when a couple like that comes to see us is you have to do it in two parts. You can’t file the I130 petition for alien relative at the same time that you file an I45-485 application for adjustment of status. Usually if a US citizen marries a foreign national, they can file those two things together at the same time.

But in this scenario, because the beneficiary’s file is with the immigration court, USCIS does not have jurisdiction to adjust their status. At that point, only the immigration judge can adjudicate the I45 and that’s where you’d have to file it. So here’s what we do. When a couple like that to see us, we file the I130 petition and we submit marital evidence. Then the case eventually gets called for an interview at the local USCIS office. And we go in there with even more marital evidence and a well practiced couple. We have them ready for their interview, and we have them ready to go to answer whatever questions about the marriage that USCIS might have. We also filed that good faith marriage exemption letter. And we wait for a decision.

Once USCIS approves that I130, then we take that to the immigration court. And we say to the Office of Chief Counsel and to the immigration judge, look, we can do this one of two ways. One, we could adjust status for our client here in immigration court, or we could file a joint motion to terminate proceedings to send jurisdiction over the foreign nationals case back to USCIS so that USCIS can decide whether or not to give a green card to the foreign national. Now the immigration court and the OCC, the Office of Chief Counsel, they usually like this approach because it gets one case off their docket. And assuming that the foreign national doesn’t have a long criminal history and assuming that you can make a prima facie case of that the foreign national is eligible for the benefit, then you should be able to get proceedings terminated. What do I mean by that?

Well, once we have that approved I130, then we send a joint motion to terminate to the OCC with a draft I45. And they asked for that so that they can see that the person is in fact eligible. And then they go ahead and hopefully join in the motion to terminate. And then you have the option where the judge says I’ll either keep the case and adjust the person here in court, but more likely they’re going to send the case back to USCIS. So it takes about a year, a year and a half because you have to wait for the I130 to be approved. Then you have to wait for the immigration court to actually terminate proceedings, to stop the deportation so that the foreign national can go back to USCIS and adjust status. And even at that interview, we’re going to bring more marital evidence and bring the US citizen spouse to show that it is an ongoing relationship.

Hope this makes sense. It’s a little bit complicated, but if you’re in the scenario of deportation, you’re probably somewhat familiar with the concepts that I mentioned. But if you have any questions, give us a call, 314-961-8200. You can email us at info@hackinglawpractice.com. Be sure to join us in our Facebook group, which is called Immigrant Home. If you liked this video, we ask that you please share it out on social and then subscribe to our YouTube channel. And speaking of our YouTube channel, don’t forget on Tuesdays and Thursdays at noon central we’re live in our Facebook group and on the channel, answering as many of your immigration law related questions as we can in just one hour. Thanks a lot and have a great day.

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