Adjusting Status as a Defense in Immigration Court

Yes — even if you are already in removal proceedings, you may still be able to win a green card by applying for adjustment of status directly before the immigration judge. This is often called "adjustment of status as a defense," and the most common version involves marrying a U.S. citizen after the case has already started, though other family petitions, some employment-based petitions, and certain humanitarian categories can also qualify. Whether it works for you depends heavily on how you entered the country, your immigration history, and any criminal record — which is why this is one of the situations where getting a qualified immigration attorney involved early matters most.

What "adjustment of status as a defense" means

Adjustment of status is the process of becoming a lawful permanent resident (getting a green card) without leaving the United States, under Immigration and Nationality Act (INA) § 245. Normally, people apply for adjustment affirmatively with U.S. Citizenship and Immigration Services (USCIS). But if you are already in removal proceedings before the immigration court, the rules shift: under federal regulation (8 CFR § 1245.2), once you are in proceedings, the immigration judge — not a USCIS officer — generally has exclusive authority to decide your adjustment application. Using that authority to seek a green card instead of a removal order is what people mean by adjustment "as a defense."

USCIS-based adjustment vs. court-based adjustment

The underlying legal requirements for a green card are the same either way, but the process looks different:

• Who decides the petition. The visa petition that makes you eligible — for example, Form I-130 filed by a U.S. citizen spouse, or a similar petition in another category — is still filed with and decided by USCIS, whether or not you are in court.
• Who decides the green card application itself. If you are in removal proceedings, the immigration judge decides the adjustment of status application (Form I-485), not USCIS. There is a narrow exception for people classified as "arriving aliens," where USCIS generally keeps jurisdiction unless specific conditions apply — a detail worth confirming with an attorney if it might apply to you.
• Background checks still run through USCIS. Even though the judge decides the case, USCIS typically still must complete identity, security, and background checks, and you will usually be scheduled for a biometrics (fingerprints and photo) appointment at a USCIS Application Support Center before the judge can grant relief.
• The setting is adversarial. In immigration court, an attorney for the Department of Homeland Security can cross-examine you and your witnesses and argue against your application, unlike a routine USCIS interview.

Because filing procedures for people already in court differ from a standard USCIS filing, and have changed over time, confirm the current instructions with your attorney, the immigration court, or USCIS (uscis.gov) rather than relying on older guidance.

A common example: marrying a U.S. citizen during proceedings

One of the most frequent ways people find a path forward in immigration court is marrying a U.S. citizen after the case has already begun. This route is available more often than for other family categories for a specific legal reason: immediate relatives of U.S. citizens (spouses, unmarried children under 21, and parents of adult citizens) are exempt from several of the bars that block adjustment for other categories, including certain periods of unlawful presence after inspection. That does not erase every obstacle — entering without inspection, certain criminal convictions, prior removal orders, and other grounds of inadmissibility can still block adjustment or require a separate waiver, so eligibility has to be checked carefully, case by case.

Because marriages formed after proceedings start invite closer scrutiny from both USCIS and the government attorney, couples should expect to document that the relationship is genuine — shared finances, shared housing, photos, affidavits from people who know the relationship, and similar evidence. An attorney can help you understand what a particular judge and government attorney's office typically expects.

How a pending petition can lead to a continuance

If your visa petition (such as an I-130) is filed but not yet decided by USCIS when your merits hearing approaches, your attorney can ask the immigration judge for a continuance — extra time before the case moves forward. Continuances are not automatic. Under 8 CFR § 1003.29, the respondent must show "good cause," and under the Board of Immigration Appeals' governing framework (Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018)), the judge weighs primarily how likely the petition is to be approved and how likely it is to actually change the outcome of the case, along with secondary factors such as:

• How diligently you pursued the petition
• The government attorney's position on the continuance
• How many hearings and continuances have already occurred
• How long the requested delay would be
• Whether a visa is expected to become available in a reasonable time (checked against the State Department's monthly Visa Bulletin) rather than remaining backlogged indefinitely

A petition for an immediate relative, where a visa number is always immediately available, tends to support a continuance far more easily than a category with a long backlog. Judges have been cautioned against granting extended continuances when a visa realistically won't become current for a long time. Because standards and how strictly they are applied can shift between administrations, ask your attorney about current practice in your particular court.

The individual (merits) hearing

If your case proceeds, the adjustment application is typically decided at your individual merits hearing — the full hearing where evidence is presented and testimony is taken, as opposed to the shorter master calendar hearings used for scheduling. At the merits hearing you (and, in a marriage case, typically your spouse) will testify, submit documentary evidence, and answer questions from the government attorney and the judge. The judge then rules on two separate questions: whether you are legally eligible for adjustment, and whether you deserve a favorable exercise of discretion — meaning the judge weighs positive factors (family ties, length of residence, hardship, community ties, rehabilitation) against negative ones (immigration violations, any criminal history, fraud concerns).

Deadlines and pitfalls to watch for

• Never miss a scheduled hearing. Missing a hearing can result in an in-absentia removal order, which is far harder to undo than pursuing adjustment while the case is still open.
• A prior removal order can block this path. If you already have a final removal order, you generally cannot simply file for adjustment — the case usually needs to be reopened or your status otherwise addressed first, which has its own strict motion deadlines.
• Manner of entry matters. Adjustment under INA § 245(a) generally requires that you were inspected and admitted or paroled. Entering without inspection can bar this path unless a specific exception applies (for example, certain grandfathering provisions, or protections available to some survivors of abuse or crime victims).
• Criminal history can be disqualifying or require a waiver. Certain convictions carry independent bars to adjustment or to admissibility; disclose your full history to your attorney, not just what you think matters.
• Discretion is never guaranteed. Meeting the legal requirements does not guarantee approval — the judge still weighs the equities of your case.

What to do

1. Talk to a qualified immigration attorney or DOJ-accredited representative as soon as possible — ideally before your next hearing date, so there is time to file the underlying petition and prepare a continuance request if needed.
2. Identify the qualifying relationship or petition (marriage to a U.S. citizen, another family petition, an employment petition, or a humanitarian category) and confirm you don't have a bar that would need a waiver first.
3. File the underlying petition with USCIS (for example, Form I-130) while keeping your attorney and the immigration court informed of its status.
4. Request a continuance if the petition is still pending close to your hearing date, supported by evidence of the petition's status and its likelihood of approval.
5. Complete biometrics promptly once USCIS schedules your appointment, and keep your confirmation to bring to court.
6. Prepare thoroughly for the individual hearing, including documentary evidence of eligibility and, where relevant, evidence of a bona fide relationship.
7. Confirm current forms, procedures, and fees directly with USCIS (uscis.gov) and the immigration court/EOIR (justice.gov/eoir) before filing, since forms, fees, and filing locations change.

This process is technical, deadline-sensitive, and highly fact-specific — small missteps (a missed filing, an incomplete waiver, an unaddressed bar) can permanently damage an otherwise strong case. Beware of "notarios" or unlicensed immigration consultants who are not attorneys or DOJ-accredited representatives; using one can waste critical time or cause irreversible harm to your case. Verify any representative through your state bar or the Department of Justice's list of accredited representatives before paying for help.

This article is general information, not legal advice, and does not create an attorney-client relationship. Immigration court outcomes depend on your specific facts — consult a qualified immigration attorney or DOJ-accredited representative about your case.