As early as last year, the Immigration Court in Portland, Oregon was willing to grant a motion to dismiss for respondents who received an approval notice for form I-130 based on marriage to a U.S. citizen.
This would allow the respondent to be able to file an I-485 application directly with USCIS after their court case had been dismissed and proceed to a marriage-based interview with their spouse at the Portland field office. Prior to requesting a motion to dismiss, counsel for the respondent would typically contact Chief Counsel’s office requesting non-opposition (“non-opp”) to a request based on the approved I-130 notice and barring any other issues, opposing counsel would generally agree.
However, recent policy changes in effect have created a situation where an Immigration Attorney requesting to close their client’s case based on this form of relief would not be able to get a non-opp. The Immigration court is also unwilling to close the case if the Chief Counsel’s office has not agreed to the motion to dismiss.
Now, when a respondent files an I-130 petition while in removal proceedings, and the respondent and their attorney attend the USCIS field office in Portland, even if they get an approval, the case will continue in Immigration Court. The respondent and their attorney will likely need to attend at least one master hearing to update the court on the filing status of the I-130 and whether it is still pending, has an interview scheduled, or the interview was completed and a decision was made. If the I-130 is still pending as of the hearing date, the Immigration Judge typically puts it on the status docket meaning another hearing will be scheduled a few months later. However, counsel for the respondent will be requested to update the court in writing 30 days prior to the next hearing of the status of the pending I-130 application.
Once the I-130 application is approved, the court will schedule the respondent out for an Individual Hearing at the Portland Immigration Court. The respondent will then be required to file their I-485 application directly with the Immigration Court, as well as following the instructions to mail the application to USCIS as directed by the court. The respondent must then attend their subsequent biometrics (fingerprint) appointment after receiving the notice to attend. The respondent will then wait for the final Individual Hearing on the merits and must bring their spouse, and may also bring witnesses to adjudicate the Form I-485 in court in front of the Immigration Judge.
On the day of the hearing, the judge will give the respondent and their spouse an opportunity to make the case that they have a valid, good-faith, legitimate marital relationship. The respondent should have filed with the court joint documents to prove they are living together, share finances together, and life together. Such documents can include jointly filed-tax returns, joint billing statements for insurance, car payments, mortgage, lease agreements, utility bills, etc. The respondent can also provide the court with photos together of the respondent and their spouse to show a timeline of when they met, got married, and living together. The judge will go through the form I-485 to ensure all information is correct and updated. The immigration judge will also ask the respondent and the spouse questions related to their marriage similar to how a USCIS officer at the local Portland field office would ask. Chief Counsel will also be given an opportunity to ask the respondent and their spouse questions as well as the witnesses who come to support the respondent. If all goes well, the Immigration Judge then has the discretion to adjust the status of the respondent in court the day of the hearing. The respondent will then be issued a permanent resident green card and no longer face the threat of deportation.
What’s your outlook on Biden’s new immigration bill? It does seem to have anything to do with the court procedure. Thank you for the clear description of the change of the increased burden of proof in plain words