Getting married while in removal proceedings with the Immigration Court requires the approval of a good faith written request (Okay faithful) waiver, under Section 245(e)(3) of the Immigration and Nationality Act (INA), to adjust status to permanent resident.
The written request for a good faith waiver must be submitted with Form I-130, Petition for Alien Relative, under 8 CFR § 204.2(a)(1)(iii)(A), to avoid residing outside the United States for a 2-year period beginning after the date of marriage, as required by Section 204(g) of the INA.
In order to establish eligibility for the Okay faithful waiver, the petitioner on Form I-130 requesting the waiver must: (1) indicate the reason for which the waiver is requested; and (2) submit documents establishing that the marriage was entered into in good faith and not for the sole purpose of obtaining entry of the alien as an immigrant under 8 CFR § 204.2(a)(1)(iii)(A) and (B).
Types of documents that show bona fide marriage:
An alien cannot adjust status to permanent resident or have the visa petition (Form I-130) for permanent status approved, unless the marriage entered into while removal/deportation proceedings are pending is shown by clear and convincing that it is in good condition. faith.
Evidence required by 8 CFR § 204.2(a)(1)(iii)(B) to establish eligibility for the Okay faithful exemption include, but are not limited to:
(1) documentation showing joint ownership of the property;
(2) lease showing joint tenure of a common residence;
(3) documentation showing the beginning of the financial resources;
(4) birth certificate(s) of the children born to the petitioner and beneficiary;
(5) affidavits from third parties who have knowledge of the Okay faithful of the marital relationship, stating the full name and address, date and place of birth of the person making the affidavit and their relationship to the spouses, if any, and containing complete and detailed information that explains how they acquired their knowledge of the marriage, and supported by documentary evidence, if possible.
Award of the service of the Form I-130 and Application for Bona Faith Marriage Waiver:
Do not request a Okay faithful exemption from marriage and present clear and convincing evidence of a bona fide marriage with visa application (Form I-130) will cause the Service (USCIS) to deny the Form I-130 visa application.
In fact, even if the alien spouse is in removal proceedings before the Immigration Court, the petitioning spouse’s Form I-130 visa application and the bona fide written request for a marriage waiver are adjudicated by the Service, not by the Immigration Judge.
After the Form I-130 visa application is approved and the bona fide marriage waiver is granted, the Immigration Judge adjudicates the Alien in Removal Proceedings Form I-485 Application for Adjustment of Status.
If the Government District Attorney agrees to terminate removal proceedings pending approval of the Form I-130 visa application, the Service will adjudicate the alien’s Form I-485 adjustment application.
Petition Denial and Adjustment Denial Appeals:
If the Form I-130 visa application is approved, it is “considered primary evidence of eligibility for the Okay faithful marriage exemption,” pursuant to 8 CFR § 245.1(c)(8)(v).
If the Form I-130 petition is denied for failure to establish eligibility for the Okay faithful 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 the Service Decision notice (33 days if the notice is mailed) is delivered and sent to the USCIS district office that denied the petition.
If the alien’s Form I-485 adjustment request is denied for failure to establish the Okay faithful– marriage exemption, the denial is appealable to the Administrative Appeals Unit (AAO) in Washington DC on Form I-290B with a fee of $585.00, and is sent to USCIS, PO Box 805887, Chicago, IL 60680-4120 , within 30 calendar days from the date of notification of the Service Decision (33 days if the notification is sent by mail).
Obtaining a bona fide marriage waiver by clear and convincing evidence (amount of evidence to overcome marriage fraud) requires ordering and presenting evidence sufficient to meet the higher standard of clear and convincing evidence, as compared to a preponderance of evidence (51% in favor) .
