Deferred Action and Adjustment of Status
Lately I’ve been getting a lot of questions about whether a person will be able to apply for adjustment of status if they marry their United States citizen fiance after receiving deferred action. The answer to this question will depend on whether you would qualify for adjustment of status even if you did not apply for deferred action.
Adjustment of Status General Rule
The general rule is that to qualify for adjustment of status you must have been “inspected” when you entered the United States. In most cases, this means that you must have entered the United States through a formal border checkpoint and presented the appropriate documents to an immigration officer, such as your passport and visa. Many people who apply for deferred action are doing so because they entered the United States illegally and were not inspected by an immigration officer.
If you fall under this category, then you should not apply for adjustment of status without first consulting with an immigration lawyer, even if you are granted deferred action. Deferred action does not grant you a lawful immigration status — it only means that the government has indicated that you will not be deported for two years. In addition, deferred action will not cure an earlier illegal entry to the United States. This means that if you entered the United States illegally, you’ll need to qualify for an exception to the general rule or find another option for obtaining a green card.
Other Options for Adjustment of Status or Getting a Green Card
Even though deferred action won’t make you eligible for adjustment of status, you may have other options. For example, if you are the beneficiary of an immigration petition that was filed on or before April 30, 2001, you may be able to apply for adjustment of status under Section 245(i) of the Immigration and Nationality Act. If you are married to someone who is in the military, you may be eligible to apply for parole in place, which would then provide you a path to getting a green card while in the United States. You may also be eligible for other immigration options that would allow you to obtain lawful immigration status. You should discuss your entire immigration history with an immigration lawyer in order to learn if you have any options for obtaining a green card while in the United States.
If you marry a United States citizen, but do not qualify for adjustment of status or any of the other options for obtaining a lawful status while in the United States, you may also want to consider the option of applying for an immigrant visa. An immigrant visa would require you to travel to your country of citizenship in order to do a visa interview. If you are older than 18 and have been in the United States unlawfully for more than a year, you may then need to obtain an unlawful presence immigration waiver in order to reenter the United States without having to wait 10 years. If you have only been in the United States unlawfully for between 6 months to one year, you may need to obtain an unlawful presence immigration waiver in order to reenter the United States without having to wait 3 years. Immigration waiver cases can be difficult to win, so you should always check with an immigration lawyer before making any decisions relating to applying for an immigrant visa or immigration waiver.
Finally, you may want to discuss with an immigration lawyer whether advance parole would be helpful for you.