Marrying while in removal proceedings with the Immigration Court requires approval of a written request for good faith (bona fide) exemption, under Section 245(e)(3) of the Immigration and Nationality Act (INA), to adjust status to permanent resident.
The written request for good faith exemption must be submitted with the Form I-130, Alien Relative Petition, per 8 C.F.R. § 204.2(a)(1)(iii)(A), to avoid residing outside the United States for a 2-year period beginning after the date of the marriage, as required by Section 204(g) of the INA.
In order to establish eligibility for the bona fide exemption, the petitioner in the Form I-130 requesting the exemption must: (1) state the reason for seeking the exemption; and (2) submit documents which establish that the marriage was entered into in good faith and not for the purpose of merely procuring the alien’s entry as an immigrant, per 8 C.F.R. § 204.2(a)(1)(iii)(A) and (B).
Types Of Documents Showing Good Faith Marriage:
An alien may not adjust status to permanent resident or have the visa petition (Form I-130) for permanent status as spouse approved, unless the marriage entered into while a removal/deportation proceedings are pending is proved by clear and convincing evidence to be in good faith.
The evidence required by 8 C.F.R. § 204.2(a)(1)(iii)(B) to establish eligibility for the bona fide exemption include, but are not limited to:
(1) documentation showing joint ownership of property;
(2) lease showing joint tenancy of a common residence;
(3) documentation showing commingling of financial resources;
(4) birth certificate(s) of child(ren) born to the petitioner and beneficiary;
(5) affidavits of third parties having knowledge of the bona fides of the marital relationship, stating the full name and address, date and place of the birth of the person making the affidavit and his or her relationship to the spouses if any, and containing complete information and details explaining how the person acquired his or her knowledge of the marriage, and supported by documentary evidence, if possible.
Service’s Adjudication Of The Form I-130 And Request For Good Faith Marriage Exemption:
Failure to request a bona fide marriage exemption and to submit clear and convincing evidence of a bona fide marriage with the visa petition (Form I-130) will cause the Service (USCIS) to deny the Form I-130 visa petition.
Indeed, even as the alien spouse is in removal proceedings with the Immigration Court, the Form I-130 visa petition of the petitioning spouse and the written request for good faith marriage exemption are adjudicated by the Service, not by the Immigration Judge.
After approval of the Form I-130 visa petition and grant of the good faith marriage exemption, the Immigration Judge adjudicates the Form I-485 adjustment of status application of the alien in removal proceedings.
If the Government’s District Counsel agrees to terminate the removal proceedings in view of the approval of the Form I-130 visa petition, the Service will adjudicate the Form I-485 adjustment application of the alien.
Appeals From Denial Of Petition And Denial Of Adjustment:
If the Form I-130 visa petition is approved, it is “considered primary evidence of eligibility for the bona fide marriage exemption,” per 8 C.F.R. § 245.1(c)(8)(v).
If the Form I-130 petition is denied for failure to establish eligibility for the bona fide marriage exemption, the denial is appealable to the Board of Immigration Appeals (Board) in Falls Church, Virginia, on Form EOIR-29 with a fee of $110.00, within 30 calendar days from the date the notice of Decision of the Service is served (33 days if the notice is mailed), and sent to the USCIS District Office that denied the petition.
If the Form I-485 adjustment application of the alien is denied for failure to establish the bona fide– marriage exemption, the denial is appealable to the Administrative Appeals Unit (AAO) in Washington D.C. on Form I-290B with a fee of $585.00, and sent to USCIS, P.O. Box 805887, Chicago, IL 60680-4120, within 30 calendar days from the date the notice of Decision of the Service is served (33 days if the notice is mailed).
Obtaining a good faith marriage exemption by clear and convincing evidence (quantum of evidence to overcome marriage fraud) requires marshalling and presenting sufficient evidence to meet the higher standard of clear and convincing evidence, as compared to preponderance of the evidence (51% in favor).