If you are married to a U.S. citizen and already in removal proceedings, you can still apply for a green card – an immigration judge decides it rather than USCIS. Under 8 CFR 1245.2(a)(1)(i), the judge hearing your case has exclusive jurisdiction over your Form I-485 if you were placed in proceedings as anything other than an “arriving alien.” Francis Law Center handles these cases from Chicago, Schaumburg, and Madison, in English and Spanish.
Who Decides Your Green Card – USCIS or the Immigration Judge?
The immigration judge does, in most removal cases. 8 CFR 1245.2(a)(1)(i) states that for any person placed in removal proceedings “other than as an arriving alien,” the immigration judge hearing the proceeding “has exclusive jurisdiction to adjudicate any application for adjustment of status.” USCIS retains jurisdiction over adjustment applications generally under 8 CFR 245.2, but that authority yields once you are in proceedings.
That one line drives the whole strategy. It turns a marriage case that would be routine into a two-track matter – one track at USCIS, one at the immigration court – and it is why filing order matters so much.
What Does “Arriving Alien” Mean, and Why Does It Change Everything?
“Arriving alien” is a legal term of art, not a comment on how recently you came to the United States. It generally describes someone encountered while applying for admission at a port of entry, and it can include people who departed and returned on advance parole. The distinction matters because 8 CFR 1245.2(a)(1)(ii) strips the immigration judge of jurisdiction over adjustment for arriving aliens except in a narrow set of circumstances – broadly, where the person had already filed with USCIS, travelled and returned on advance parole, had the application denied, and was then placed in proceedings.
The practical consequence: two people with nearly identical marriages can need opposite filing strategies. Your Notice to Appear, entry history, and any advance parole travel determine which category applies – have an attorney read them before anything is filed.
How Does Concurrent Filing of Form I-130 and Form I-485 Work?
Concurrent filing means your U.S. citizen spouse’s Form I-130 petition and your Form I-485 application go to USCIS together in one package, rather than one after the other. Because you are an immediate relative of a U.S. citizen, a visa number is available immediately, so there is no waiting line between the two steps. USCIS has been scheduling interviews faster for concurrently filed cases, which is the main practical reason to file this way.
The package usually also includes Form I-864 Affidavit of Support from your spouse, a Form I-693 medical examination by a designated civil surgeon, and – where useful – Form I-765 for employment authorization and Form I-131 for advance parole. Medical exam costs vary by civil surgeon and are paid to that doctor, not to the government.
Filing fees are set at 8 CFR 106.2: $675 for the I-130 and $1,440 for the I-485, reduced to $950 for an applicant under 14 filing with a parent. If the adjustment goes before the immigration court instead, EOIR charges its own separate fee – check current EOIR forms and fee information. Fees change; verify against the USCIS fee schedule before filing.
What Is a Motion to Terminate, and When Should It Be Filed?
A motion to terminate asks the immigration judge to end your removal case. Once proceedings are terminated, the jurisdictional bar in 8 CFR 1245.2(a)(1)(i) no longer applies, and USCIS can adjudicate your adjustment application on the ordinary track – usually a faster and more predictable path than litigating it in court.
Timing is the art of it. The motion is normally filed after the Form I-130 is approved, because an approved petition is concrete proof that relief is available to you rather than speculative. Filing too early invites a denial that is harder to undo. Counsel must also be on the record first, which means a Form EOIR-28 Notice of Entry of Appearance with the court.
Whether a court grants termination has varied with enforcement policy and with the position DHS takes in a given case, and no attorney can promise a particular outcome. What can be controlled is the record: an approved petition, a complete adjustment package, and a well-documented bona fide marriage.
What Happens If the Immigration Judge Denies the Motion?
The case continues – it simply stays in court. If termination is denied, we pursue your adjustment of status application before the immigration judge under 8 CFR 1245.2 and INA §245. You still receive a decision on the green card; it comes from the immigration court rather than from USCIS.
Adjudication in court differs from a USCIS interview: the government is represented by an attorney, testimony is taken on the record, and the evidentiary presentation matters more. This is where having one firm handle both the family petition and the removal defense pays off – the marriage evidence and the court strategy get built together.
Where adjustment is not available, other relief may be, including cancellation of removal for non-permanent residents, defensive asylum, or the I-601A provisional unlawful presence waiver. If a family member is detained, see our guidance on immigration bond.
What Is a CR6 Green Card, and How Is It Different from CR1 or IR6?
CR6 is the code printed on a green card issued to a conditional resident who adjusted status inside the United States as the spouse of a U.S. citizen. The letters carry real meaning:
- CR6 – conditional resident, adjustment inside the U.S., marriage under two years old when residence was granted.
- CR1 – same conditional category, obtained through consular processing abroad.
- IR6 – adjustment inside the U.S., marriage two years or older at approval, so not conditional.
- IR1 – the same non-conditional category, through consular processing abroad.
Conditional residence under INA §216 lasts two years. To keep permanent status, you and your spouse file Form I-751 jointly in the 90 days before your second anniversary of residence – see our I-751 removal of conditions page. Waivers of the joint filing requirement exist for divorce, abuse, or extreme hardship. Naturalization is the step after that.
How Francis Law Center Handles Marriage Cases in Removal Proceedings
These cases are run as one matter, not two. The sequence is deliberate:
- Read the charging document first – whether you were placed in proceedings as an arriving alien decides everything else, because 8 CFR 1245.2 sends those cases down a different road.
- Enter appearance with the court. A Form EOIR-28 puts counsel on the record. Hearing dates are tracked through the EOIR case information system.
- File I-130 and I-485 concurrently with the full package – Form I-864, the Form I-693 medical, and work authorization where it helps.
- Build the bona fide marriage record – joint finances, shared residence, and relationship history, which both USCIS and a judge scrutinize.
- Move to terminate once the [I-130](https://www.uscis.gov/i-130) is approved, so USCIS can decide the adjustment.
- If termination is denied, litigate the adjustment before the judge rather than starting over.
Progress is tracked through USCIS case status and current processing times, so you know which stage you are at.
Why Choose Francis Law Center
Dr. Jae Francis leads a bilingual practice that covers both sides of this problem – family immigration and removal defense – so a marriage case in proceedings does not get split between a petition specialist and a court specialist who never speak.
The firm serves clients from three offices: Chicago, Schaumburg, and Madison, Wisconsin. Removal cases for Illinois and Wisconsin residents are heard at the Chicago Immigration Court, 55 E. Monroe Street, Suite 1500, Chicago, IL 60603. Location-specific guidance is available for marriage green cards in Chicago and in Madison. Hearings and meetings are handled in English and Spanish.
Related: marriage-based green cards outside of proceedings, immigration waivers, and our contact page.
Frequently Asked Questions
Can I apply for a marriage green card if I am already in removal proceedings?
Yes. Proceedings do not disqualify you from adjusting status through marriage to a U.S. citizen – they change who decides it. Under 8 CFR 1245.2(a)(1)(i), if you were placed in proceedings as anything other than an “arriving alien,” the immigration judge has exclusive jurisdiction over your Form I-485.
Will USCIS still approve my Form I-130 while I am in removal proceedings?
Generally yes. USCIS keeps jurisdiction over the Form I-130 petition your spouse files, and it can approve that petition while your court case is pending. What USCIS will not usually do is adjudicate your Form I-485 while proceedings remain open.
What is a motion to terminate, and why would we file one?
A motion to terminate asks the immigration judge to end your removal case. If the judge grants it, you are no longer in proceedings, which clears the way for USCIS to decide your adjustment application on the ordinary track. It is normally filed after the I-130 is approved, because an approved petition is the strongest showing that relief is actually available to you.
What happens if the immigration judge denies the motion to terminate?
Your case does not end there. If the judge keeps the case, we pursue the adjustment application in front of the immigration judge instead, under 8 CFR 1245.2. You still get a decision on the green card – it comes from the court rather than from USCIS.
What does CR6 mean on a green card?
CR6 is the category code for a conditional resident who got status by adjusting inside the United States as the spouse of a U.S. citizen. “CR” means conditional, which applies when the marriage is under two years old on the day residence is granted; those residents later file Form I-751 to remove the conditions. At two years or older the code is IR6 and residence is not conditional.
Am I an “arriving alien”? How would I know?
It is a term of art, not a description of how recently you entered. It generally covers people encountered while applying for admission at a port of entry, including some who left and returned on advance parole. Under 8 CFR 1245.2(a)(1)(ii) an arriving alien loses access to the immigration judge for adjustment except in narrow circumstances. Your charging document decides it – have an attorney read it.
How much are the government filing fees?
8 CFR 106.2 sets the Form I-130 fee at $675 and the Form I-485 fee at $1,440 ($950 under 14 with a parent), and the immigration court charges its own separate fee. Fees change – confirm current amounts on the USCIS fee schedule before filing.
Disclaimer
This page provides general information about U.S. immigration law and does not constitute legal advice. Reading this page or contacting Francis Law Center does not create an attorney-client relationship. Immigration law changes frequently and outcomes depend on the specific facts of each case. For advice about your situation, speak with a licensed immigration attorney.
