If you are already in removal proceedings, applying for a green card is no longer an ordinary USCIS filing. Your case may require you to defend against removal while proving to an Immigration Judge that you are eligible for adjustment of status, admissible to the United States, and deserving of permanent residence as a matter of discretion.

The first question is not simply, “Can I file Form I-485?” It is:

Does the Immigration Judge or USCIS have authority to decide this adjustment application—and what must happen in the removal case while the underlying petition is pending?

That jurisdictional answer can change the entire strategy.

National Security Law Firm represents individuals seeking adjustment of status in immigration-court proceedings. Our removal-defense practice is led by Justin M. Price, a former U.S. Immigration Judge and former Department of Homeland Security immigration trial attorney.

Justin has viewed adjustment cases from the decision-maker’s chair and litigated removal matters for DHS. He understands how judges evaluate jurisdiction, visa availability, qualifying relationships, admissions and parole, criminal or immigration violations, waivers, credibility, documentary evidence, and favorable discretion. He now uses that experience to represent respondents at master calendar hearings and contested merits hearings.

Already have an NTA or immigration-court hearing? Schedule an immigration strategy consultation before filing an I-485 with the wrong agency, conceding removability, or asking the court for time to await a petition.

Important: Adjustment of status is discretionary. An approved family or employment petition does not by itself guarantee a green card, termination of proceedings, or relief from removal.

Adjustment in Immigration Court: At a Glance

Question Why it matters
Are removal proceedings actually pending? The NTA must generally be filed with EOIR before proceedings begin and court jurisdiction attaches.
Is the applicant an “arriving alien”? USCIS generally retains I-485 jurisdiction over arriving aliens, with a narrow regulatory exception.
Was the person inspected and admitted or paroled? Ordinary INA § 245(a) adjustment generally requires inspection and admission or parole.
Is there an approved or approvable immigrant petition? USCIS ordinarily decides the underlying I-130, I-140, I-360, or other petition even when the I-485 belongs before the judge.
Is an immigrant visa immediately available? Most preference-category applicants cannot adjust until the priority date is current. Immediate relatives use different visa-availability rules.
Does INA § 245(i) or another special provision apply? Some people who cannot use ordinary § 245(a) may have an alternative adjustment path.
Is the applicant admissible? Criminal history, fraud, false citizenship claims, prior removal, unlawful presence, smuggling, health grounds, and other issues may require a waiver or may bar adjustment.
Does the case merit favorable discretion? Eligibility alone does not compel the Immigration Judge to grant permanent residence.

This review must occur before the merits hearing—not after DHS identifies the defect in court.

Defensive Adjustment Is Different From an Ordinary USCIS Case

“Defensive adjustment of status” is commonly used to describe adjustment sought as relief from removal before an Immigration Judge. The client’s posture, risk, process, and hiring intent are different from an ordinary USCIS adjustment case.

Ordinary USCIS adjustment Adjustment in removal proceedings
Applicant is generally not defending an active removal case Respondent is charged with removability before EOIR
USCIS officer adjudicates Form I-485 Immigration Judge may adjudicate Form I-485 if the court has jurisdiction
Interview is an agency adjudication Individual hearing is adversarial litigation
No ICE trial attorney ordinarily opposes the application DHS counsel may challenge eligibility, evidence, waivers, credibility, and discretion
USCIS decides both many petitions and the adjustment application USCIS may decide the petition while the Immigration Judge decides adjustment
Denial may lead to an NTA, depending on the case Denial may result in an immediately appealable removal order
Record is built for USCIS adjudication Record must support the Immigration Judge’s findings and preserve appellate issues

The same Form I-485 can therefore require a very different legal strategy once removal proceedings are underway.

Why Justin Price’s Experience Matters

Adjustment in court sits at the intersection of benefits law and removal litigation. The case may involve one agency deciding the underlying petition, another party prosecuting the removal charge, and an Immigration Judge deciding the I-485.

Former U.S. Immigration Judge: He evaluated applications for relief, testimony, exhibits, legal eligibility, inadmissibility questions, and discretionary factors from the bench.

Former DHS immigration trial attorney: For more than 12 years, he represented the government in immigration litigation and addressed the evidentiary and legal issues DHS may raise in removal cases.

Former U.S. Air Force JAG and military prosecutor: His background includes contested hearings, witness preparation, legal argument, and development of a clear evidentiary record.

Former assistant public defender: His defense experience is particularly useful when the I-485 or waiver analysis involves arrests, convictions, sentences, rehabilitation, or incomplete criminal records.

An approved I-130 proves an immigration classification; it does not answer every question the Immigration Judge must decide. The court still may need to determine whether the respondent was admitted or paroled, whether a visa is available, whether an adjustment bar applies, whether the person is inadmissible, whether a waiver is legally available, whether the evidence is credible, and whether discretion should be exercised favorably.

That is why NSLF treats defensive adjustment as a litigated removal defense—not simply form preparation.

Who Decides the I-485: USCIS or the Immigration Judge?

Jurisdiction is a threshold issue. Filing with the wrong adjudicator can result in rejection, delay, conflicting instructions, or failure to present relief by the court’s deadline.

Under 8 C.F.R. § 1245.2(a)(1), an Immigration Judge generally has exclusive jurisdiction over an adjustment application filed by a person in removal proceedings, other than an arriving alien, subject to the regulatory exceptions and case-specific rules.

Most non-arriving respondents

If the respondent is in proceedings and is not treated as an arriving alien, the Immigration Judge generally adjudicates the I-485. USCIS may still retain authority over the underlying immigrant petition.

Arriving aliens

USCIS generally retains jurisdiction over an arriving alien’s adjustment application even while removal proceedings are pending or an unexecuted removal order exists.

There is a narrow exception under which an Immigration Judge may renew a previously denied adjustment application involving advance parole. According to the current USCIS Policy Manual, the exception generally requires that the adjustment application was properly filed with USCIS while the person was in the United States, the applicant departed and returned under advance parole to pursue that application, USCIS denied the application, DHS placed the person in arriving-alien proceedings upon return or after the denial, and the person seeks to renew that same denied application before the Immigration Judge.

The exception does not ordinarily give the judge jurisdiction over a new I-485 based on a different petition or adjustment theory.

Proceedings, administrative closure, and final orders

Jurisdiction may remain technical even where proceedings have been administratively closed or a final order has not been executed. The complete procedural history must be reviewed. Do not assume that an old case, closure, or unexecuted order automatically places the I-485 with USCIS or EOIR.

Basic Eligibility Under INA § 245(a)

The general adjustment statute, INA § 245(a), 8 U.S.C. § 1255(a), ordinarily requires the applicant to establish that the person was inspected and admitted or paroled into the United States, the person is eligible to receive an immigrant visa, the person is admissible to the United States for permanent residence, an immigrant visa is immediately available when the application is filed and adjudicated, and the application merits favorable discretion.

Additional category-specific rules and statutory bars may apply. Every element should be connected to reliable evidence.

Inspection, Admission, or Parole

Ordinary § 245(a) adjustment generally requires inspection and admission or parole. A passport stamp, visa, Form I-94, parole document, DHS record, or credible testimony may help establish the event, depending on the circumstances.

Potential complications include entry without inspection, entry using another person’s documents, a false claim to U.S. citizenship, disputed identity or admission records, parole that does or does not satisfy the relevant statute, crewman entry, transit-without-visa history, Visa Waiver Program restrictions, TPS-related travel and circuit-specific law, advance parole, and prior expedited removal, reinstatement, or voluntary return.

An immediate-relative relationship does not automatically cure entry without inspection. Some individuals may need to evaluate military Parole in Place, INA § 245(i), consular processing, or another statutory route.

INA § 245(i) and Entry Without Inspection

INA § 245(i) may allow certain people to adjust despite entry without inspection or other specified adjustment bars if they are beneficiaries of qualifying petitions or labor certifications filed on or before the statutory deadline and satisfy all applicable requirements.

The analysis may involve the filing date of the qualifying petition or labor certification, whether it was approvable when filed, whether the applicant is the principal or a derivative beneficiary, whether grandfathering continues despite later family or employment changes, physical presence on the date required for certain filings, visa availability under the current basis, admissibility and any available waiver, and payment of the statutory sum in addition to ordinary filing requirements.

Section 245(i) does not waive every inadmissibility ground and should not be assumed from an old receipt notice alone. The original petition, supporting documents, decision history, and relationship evidence may be essential.

The Underlying Immigrant Petition

An I-485 usually depends on an underlying immigrant classification. Common examples include Form I-130 based on a qualifying family relationship, Form I-140 based on employment, Form I-360 under an applicable special-immigrant, widow(er), or VAWA provision, or another statute-specific basis for adjustment.

USCIS generally retains authority to adjudicate immigrant visa petitions even when the respondent is in removal proceedings. The Immigration Judge ordinarily cannot approve an I-130 or I-140 simply because the petition is necessary to the court case.

This division of authority can require coordinated litigation: the petition is filed or remains pending with USCIS, the respondent informs the Immigration Judge of the potential adjustment basis, the court determines whether good cause supports a continuance or other procedural action, DHS states its position, USCIS adjudicates the petition, and the respondent pursues adjustment before the proper adjudicator when eligible.

An approved petition is important, but the court still decides independent adjustment and waiver issues within its jurisdiction.

Continuances While a Petition Is Pending

If USCIS has not decided the underlying petition, the respondent may need to request a continuance. A continuance is not automatic merely because a petition was filed.

Relevant considerations under current agency precedent may include DHS’s position, whether the petition appears prima facie approvable, whether approval would materially affect the removal case, the respondent’s apparent statutory eligibility for adjustment, whether adjustment appears to merit favorable discretion, the reason for the request, prior continuances and case history, government processing status, and other procedural factors bearing on good cause and efficient adjudication.

A persuasive request should provide evidence—not merely tell the judge that “USCIS is working on it.” Receipts, petition evidence, visa availability, eligibility analysis, processing history, and a realistic procedural plan may matter.

Visa Availability and Priority Dates

An immigrant visa must generally be immediately available both when required for filing and when the Immigration Judge adjudicates the application.

Immediate relatives

Certain spouses, unmarried children under 21, and parents of adult U.S. citizens are not subject to the same numerical preference backlogs. But they still must satisfy relationship, adjustment, admissibility, and discretionary requirements.

Family- and employment-preference categories

Preference applicants may need to establish that the priority date is current under the legally applicable Department of State Visa Bulletin chart. Availability can advance, remain unchanged, or retrogress while court proceedings are pending.

The court record should contain the petition approval, priority date, category, chargeability information, and current visa-availability evidence when required.

Adjustment Based on Marriage During Removal Proceedings

A marriage entered after removal proceedings begin receives heightened scrutiny. Under INA § 245(e), the respondent may need to establish through clear and convincing evidence that the marriage was entered in good faith and not to obtain an immigration benefit.

Relevant evidence may include the history of the relationship and courtship, shared residence, joint finances, taxes, insurance, and liabilities, children and shared parenting, communication and travel history, photographs placed in context, affidavits and testimony from people with personal knowledge, family integration, prior marriages and divorce records, and explanations for unusual living, financial, or timing circumstances.

A marriage certificate and approved I-130 may not end every dispute. DHS may cross-examine the respondent and spouse, and the Immigration Judge may make independent findings relevant to adjustment and discretion.

Inadmissibility: The Issue That Can Defeat an Otherwise Valid Case

The applicant must establish admissibility or eligibility for every required waiver under INA § 212, 8 U.S.C. § 1182. Potential grounds include crimes involving moral turpitude, controlled-substance violations, multiple convictions, fraud or willful misrepresentation, false claims to U.S. citizenship, unlawful presence after departure, prior removal and unlawful reentry, alien smuggling, health-related grounds, public-charge rules where applicable, security- or terrorism-related grounds, prostitution or commercialized vice, failure to attend prior removal proceedings, and other category-specific restrictions.

The existence and effect of a ground may depend on dates, statutory language, the record of conviction, manner of entry, prior statements, departures, family relationships, and controlling circuit law.

Criminal records require immigration-specific analysis

The court may need certified charging instruments, plea documents, judgments, sentencing records, and proof of later modifications. A sealed, dismissed, reduced, or expunged case may still matter. Conversely, the label attached to the offense does not by itself establish the immigration consequence.

Waivers of Inadmissibility

Some inadmissibility grounds may be waived if the applicant satisfies a separate statute. Others have no generally available waiver in the circumstances presented.

A waiver analysis may require proof concerning the precise ground of inadmissibility, the requested waiver provision, a qualifying spouse, parent, or other relative, extreme hardship or another statutory standard, rehabilitation and passage of time, the nature, seriousness, and recency of conduct, family unity and humanitarian factors, public-safety concerns, and favorable discretion.

The qualifying relatives and hardship standards used for one waiver cannot be assumed to apply to another. An applicant also should not depart the United States for a provisional-waiver or consular strategy without understanding the removal-order, unlawful-presence, permission-to-reapply, and enforcement consequences.

Adjustment Is Discretionary

Even when the respondent proves technical eligibility, the Immigration Judge may deny adjustment as a matter of discretion. The court weighs the full record.

Favorable considerations may include close U.S.-citizen or LPR family, length and quality of residence, military service, employment and tax compliance, caregiving responsibilities, rehabilitation, community involvement, medical or humanitarian circumstances, and candor and compliance during proceedings.

Adverse considerations may include criminal conduct, immigration fraud or misrepresentation, repeated status violations, prior removal or unlawful reentry, failure to comply with court orders, tax or support problems, false testimony, unexplained inconsistencies, and other conduct bearing on character or the integrity of the immigration system.

A strong case does not hide adverse evidence. It explains the record accurately, provides legally relevant context, and documents rehabilitation and favorable equities.

Evidence for an Immigration-Court Adjustment Case

The evidentiary submission should be organized around the findings the Immigration Judge must make. Depending on the case, it may include Form I-485 and required supplements, the approved or pending immigrant petition, visa-availability evidence, passport, visa, I-94, admission, and parole records, certified civil documents, bona fide relationship evidence, certified criminal records, prior immigration applications, decisions, and court records, tax, employment, military, and community records, medical, caregiving, or hardship records supporting a waiver or discretion, applicant and witness declarations, evidence of rehabilitation, waiver applications and supporting evidence, required translations, and proof of government-fee and biometrics compliance.

The I-485, petition, declarations, and testimony must be compared with the A-file and Record of Proceedings. Prior visa applications, border statements, USCIS interviews, or criminal records may contain facts DHS will use at the merits hearing.

What NSLF Does in a Defensive Adjustment Case

Depending on the written engagement, NSLF may determine whether USCIS or the Immigration Judge has I-485 jurisdiction, review the NTA, pleadings, charges, hearing history, and deadlines, analyze admission, parole, § 245(i), visa availability, and adjustment bars, review the underlying petition and coordinate its USCIS posture with the court case, obtain and analyze immigration and criminal records, identify inadmissibility grounds and available waivers, prepare or amend Form I-485 and related applications, develop relationship, hardship, rehabilitation, and discretionary evidence, prepare continuance motions or other procedural requests, prepare the respondent, petitioner, qualifying relatives, and other witnesses, appear at covered master calendar and individual hearings, examine witnesses, respond to DHS, and present legal argument, preserve material issues for appeal, and explain the Immigration Judge’s decision and post-decision options.

The precise scope is stated in the engagement agreement. A petition before USCIS, waiver, additional hearing, expert, appeal, motion, federal case, or separate family-member matter may require additional arrangements.

What Happens at the Adjustment Merits Hearing?

An adjustment merits hearing is adversarial. Depending on the case, the hearing may include resolution of jurisdiction and pending motions, confirmation of the I-485, waiver, and requested relief, admission of exhibits and rulings on objections, testimony from the respondent, testimony from a petitioning spouse or other witnesses, DHS cross-examination, questions from the Immigration Judge, argument concerning admissibility, waivers, and discretion, and an oral decision or later written ruling.

The respondent bears the applicable burden of proving eligibility. Testimony should be truthful, consistent with the record, and supported by reasonably available documents.

Many adjustment cases are strongest on the family relationship but weakest on the applicant’s complete immigration history. A bona fide marriage does not erase an inadmissibility ground, prior removal, false claim, or entry problem. The entire case must be screened before the couple prepares only for marriage questions.

If the Immigration Judge Grants Adjustment

If the Immigration Judge grants adjustment and the order becomes final, the person becomes a lawful permanent resident under the applicable provision. USCIS is responsible for producing evidence of status, including the permanent resident card.

If the grant is based on a marriage that was less than two years old at the legally relevant time, conditional permanent residence may apply. The couple may later need to file Form I-751 or pursue an available waiver to remove conditions.

If the Immigration Judge Denies Adjustment

An adjustment denial may accompany an order of removal. Depending on the reason and procedural posture, options may include reserving and filing a timely BIA appeal, filing a motion to reconsider a material legal or factual error, filing a motion to reopen based on qualifying new evidence, seeking remand during a pending appeal, pursuing appropriate USCIS action if the agency—not the judge—has jurisdiction, filing a petition for review after exhausting available administrative remedies, or seeking a stay of removal or other emergency relief where available.

Under current EOIR rules, Form EOIR-26 generally must be received by the BIA within 30 calendar days after the Immigration Judge renders an oral decision or mails a written decision. Waiving appeal can make the order final immediately.

An appeal, motion, or USCIS filing does not always automatically stay removal.

Current Government Filing Fee

Government fees are separate from attorney fees and change periodically. EOIR’s Forms and Fees page, reviewed August 20, 2026, lists the Form I-485 fee for an immigration-court filing as $2,980 and requires covered EOIR fees to be paid electronically through the EOIR Payment Portal.

The applicant may also face separate fees for an immigrant petition, waiver, employment authorization, medical examination, biometrics, records, translation, or another filing. Fee-waiver rules vary.

Always confirm the current form edition, fee, payment method, filing instructions, and court order on EOIR’s Forms and Fees page immediately before filing.

Common Mistakes

Filing the I-485 with the wrong agency

Proceedings and arriving-alien classifications can alter jurisdiction. Determine whether USCIS or the Immigration Judge controls before filing.

Assuming an approved I-130 guarantees adjustment

The petition establishes classification. It does not by itself prove admission or parole, visa availability, admissibility, waiver eligibility, or favorable discretion.

Ignoring entry without inspection

Marriage to a citizen does not automatically satisfy § 245(a). Evaluate § 245(i), Parole in Place, consular processing, or another lawful route.

Requesting a continuance without evidence

The court may require more than a receipt notice. Address prima facie approvability, adjustment eligibility, visa availability, DHS’s position, and procedural history.

Underestimating a marriage entered during proceedings

The heightened clear-and-convincing standard requires more than photographs and a marriage certificate.

Failing to investigate inadmissibility

A waiver may require its own qualifying relative and hardship record. Some grounds have no available waiver.

Preparing only for a marriage interview

DHS and the judge may focus on entries, departures, arrests, prior applications, false statements, taxes, removability, and discretion.

Missing biometrics, fee, medical, or exhibit deadlines

The court can reject evidence or deem an application abandoned. Follow every case-specific order.

Believing an appeal is a new trial

The BIA generally reviews the record created before the Immigration Judge. Preserve the issues and submit the evidence at the merits stage.

Frequently Asked Questions

Can I get a green card while in removal proceedings?

Possibly. Eligibility depends on the immigrant basis, admission or parole, visa availability, adjustment bars, admissibility, waivers, jurisdiction, and favorable discretion.

Will USCIS or the Immigration Judge decide my I-485?

An Immigration Judge generally has jurisdiction over a non-arriving respondent’s adjustment application in removal proceedings. USCIS generally retains jurisdiction for arriving aliens, subject to a narrow exception. The procedural record must be reviewed.

Who decides my I-130 while I am in immigration court?

USCIS generally adjudicates the I-130. The Immigration Judge may decide whether to continue proceedings and later adjudicate an I-485 within the court’s jurisdiction.

Can the judge approve my green card if my I-130 is still pending?

The case may require a continuance or another procedural step while USCIS decides the petition. A continuance is discretionary and requires good cause.

Can I adjust if I entered without inspection?

Ordinary § 245(a) adjustment generally requires inspection and admission or parole. Section 245(i), military Parole in Place, VAWA, or another special provision may provide a path in some cases. Marriage alone does not cure the issue.

What if I married after removal proceedings began?

Adjustment may still be possible, but the marriage is subject to heightened statutory scrutiny. The respondent generally must prove through clear and convincing evidence that the marriage is bona fide.

Can I adjust with a criminal conviction?

Possibly, depending on the offense, record of conviction, immigration ground, sentence, exceptions, waiver eligibility, and discretion. Some offenses bar adjustment or make a required waiver unavailable.

Does a pending I-485 stop removal?

Not automatically. The effect depends on jurisdiction, procedural posture, court orders, and any stay authority. Continue attending hearings and complying with all deadlines.

Is employment authorization included?

Eligibility and filing category depend on the pending application and current rules. Whether NSLF’s representation includes Form I-765 must be expressly stated in the engagement agreement.

Does NSLF’s fee include the I-130, waiver, every hearing, and appeal?

Only services identified in the written engagement agreement are included. Petition work, waivers, additional hearings, experts, travel, interpretation, appeals, and post-decision litigation may require separate arrangements.

Can NSLF guarantee a green card?

No. NSLF can determine jurisdiction, analyze eligibility and inadmissibility, develop the evidence, prepare witnesses, litigate the hearing, and preserve appropriate issues. The proper agency or Immigration Judge decides the application.

Do You Need Representation for the Entire Removal Case?

Defensive adjustment of status is one application within a larger removal proceeding. Even when adjustment is the principal form of relief, the case may also involve charges of removability, pleadings, master calendar hearings, filing deadlines, admissibility issues, waivers, DHS objections, witness testimony, and preservation of the record.

If you need an attorney to handle the broader proceeding—not only the adjustment application—learn about NSLF’s full removal-defense representation.

Former Immigration Judge and former DHS trial attorney Justin M. Price represents respondents through the agreed stages of their immigration-court cases, including master calendar proceedings, case preparation, contested motions, and individual merits hearings.

Speak With an Immigration Court Adjustment Lawyer

When removal proceedings are already pending, a green-card case requires more than filing forms. The petition, court charges, adjustment application, inadmissibility analysis, waivers, evidence, witnesses, and procedural strategy must all work together.

Justin M. Price has served as the Immigration Judge evaluating applications for relief and as the DHS attorney litigating removal proceedings. He now uses that experience to represent individuals seeking permanent residence while defending against removal.

Schedule an immigration strategy consultation with National Security Law Firm.

National Security Law Firm — It’s Our Turn to Fight for You.

Authorities and Official Resources

Related Resources

Legally reviewed by Justin M. Price, Immigration Attorney, Former Immigration Judge, and Former DHS Trial Attorney

Last updated and legally reviewed: August 20, 2026