Adjustment of status in removal proceedings
A person in removal proceedings who is eligible for a green card does not wait for the case to end and then apply. The immigration judge has exclusive jurisdiction over the adjustment application, and grants it in the courtroom. What the judge cannot do is approve the family petition that makes adjustment possible: that is decided by USCIS, and the court waits for it. This page covers who qualifies, the bars, the petition, the waivers filed alongside, and the government fee.
Current as of September 2026. We re-check this page every quarter and after any rule change.
Adjustment of status is the same benefit inside court and outside it: a grant of lawful permanent residence to a person already in the United States. What changes in proceedings is who decides, how the petition and the application are split between two agencies, and the fact that a denial comes with a removal order. It is one of the applications on the full list of relief from removal, and for a person with a citizen spouse it is often the strongest one.
Who decides: the judge, with one exception
Under 8 C.F.R. 1245.2(a)(1)(i), the immigration judge has exclusive jurisdiction over an adjustment application filed by a respondent in removal proceedings. USCIS will not adjudicate it. The exception, in 1245.2(a)(1)(ii) and the parallel rule at 8 C.F.R. 245.2(a)(1), is an arriving alien. That person's adjustment application is decided by USCIS even while proceedings are pending, and the court's role is to wait.
Whether you are an arriving alien turns on how you came to the port of entry and how the Notice to Appear charges you. It decides who rules on your green card, so it is checked at the first hearing.
What INA 245(a) requires
| Requirement | What it means | Where it is litigated |
|---|---|---|
| Inspected and admitted or paroled | You came in through a port of entry and were admitted, or were paroled | Entry without inspection; the wave-through under Quilantan; 245(i) |
| A visa immediately available | An approved petition in a category where a visa number is available now | Whether USCIS has approved the I-130; the priority date |
| Admissible | No ground of inadmissibility under INA 212(a) applies, or a waiver cures it | Criminal grounds; fraud; unlawful presence; the waivers filed alongside |
"Admitted" means a procedurally regular inspection and admission, even if it was not substantively lawful. Under Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), a person who presented at a port of entry and was waved through without questioning was admitted, and can adjust under 245(a). Proving a wave-through years later is an evidentiary problem, usually solved with the applicant's own detailed testimony and any corroboration of the trip.
The 245(c) bars, and the immediate-relative exception
INA 245(c) bars adjustment for several categories of people, including those who worked without authorization and those who failed to maintain lawful status. The 245(c)(2) bars (unauthorized employment, unlawful status, failure to maintain status) and the (c)(4) visa-waiver bar do not apply to immediate relatives of United States citizens by the statute's own terms, and the (c)(8) bar does not apply to them by regulation, 8 C.F.R. 1245.1(b)(10). The other 245(c) bars, such as the one for crewmen, reach immediate relatives too. In practice this is why the spouse of a citizen who overstayed a visa and worked for years can still adjust in front of the judge, while the spouse of a permanent resident with the same history often cannot. Which category the petition falls in is decided by USCIS on the I-130, and it decides which bars apply.
INA 245(i)
Section 245(i) lets a person adjust despite an entry without inspection or a status violation if they are the beneficiary of a visa petition or labor certification filed on or before April 30, 2001, and, if it was filed after January 14, 1998, they were physically present in the United States on December 21, 2000. The applicant pays a $1,000 statutory sum in addition to the government filing fee; both are government payments, not our legal fees. The regulation for proceedings is 8 C.F.R. 1245.10. Twenty-five years on, the qualifying petition is usually one filed by a parent or a former employer, and the first task is to find it in the record.
The I-130 is decided by USCIS, never by the judge
The immigration judge has no jurisdiction over the family petition. Under 8 C.F.R. 1245.2(a)(1), USCIS adjudicates the Form I-130, and the judge cannot approve it, waive it or assume it will be approved. The court case and the petition therefore run on two tracks: the citizen or resident relative files the I-130 with USCIS, USCIS decides it, and the judge decides the adjustment once it is approved.
While the petition is pending, the case is continued for good cause under 8 C.F.R. 1003.29 or administratively closed. For a continuance to await a family petition, the Board set out a five-factor test in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and under Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), the primary considerations are the likelihood that the petition will be approved and whether its approval would materially affect the outcome of the removal case. A petition by a citizen spouse for an immediate relative with no inadmissibility problem is the strongest case for a continuance; a petition whose priority date is years away is the weakest, and in Matter of Pinzon Rozo, 29 I&N Dec. 507 (BIA 2026), the Board held it error to continue a case to await a distant priority date. Administrative closure under Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and 8 C.F.R. 1003.18(c) is the alternative when the wait will be long.
File the petition first, and early
The judge will not continue the case indefinitely for a petition that has not been filed. The I-130 goes to USCIS as soon as the relationship exists, with the receipt notice filed with the court at the next hearing. A stalled petition is a different problem, and a mandamus action can compel USCIS to decide it.
The I-130 petition, the evidence of a bona fide marriage, and the USCIS side of the case are handled on our family immigration site.
Family petitions at visa4love.com →
uscisdelay.comWhen USCIS sits on the I-130 and the judge is running out of patience, a mandamus action in federal court asks a district judge to order a decision.
Mandamus for a stalled petition at uscisdelay.com →
Waivers filed alongside
Adjustment requires admissibility, and a person in proceedings often has a ground of inadmissibility to cure. The waiver is filed with the adjustment application and decided at the same hearing:
- A criminal ground: the 212(h) waiver, for crimes involving moral turpitude and a short list of other grounds. Under Matter of Rivas, 26 I&N Dec. 130 (BIA 2013), a permanent resident in proceedings can use it only together with an adjustment application, which is one reason re-adjustment is the route for a resident with a waivable conviction.
- Fraud or misrepresentation: the 212(i) waiver, on extreme hardship to a citizen or resident spouse or parent.
- Unlawful presence: the bars in INA 212(a)(9)(B) are triggered by a departure. Since August 13, 2026, under Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), a trip on advance parole counts as such a departure; the older rule of Matter of Arrabally and Yerrabelly is overruled. All of this is covered on the waivers overview.
The government fee
For a Form I-485 filed with or decided by the immigration court, the government fee is $2,980 as of September 2026: the $1,440 USCIS fee under 8 C.F.R. 106.2 plus a $1,540 fee added by the 2025 reconciliation law, for filings postmarked on or after February 1, 2026, per 91 FR 2561. It is a government filing fee and is not our legal fee. A waiver on Form I-601 carries a separate USCIS fee, which we have not confirmed for this page; Form G-1055 is authoritative. The EOIR forms and fees page carries the current schedule, and we confirm every figure with you before filing.
The hearing
Adjustment is decided at an individual hearing. You testify about your entry, your marriage or other qualifying relationship, and anything bearing on admissibility and discretion; your spouse or relative testifies; the government's attorney cross-examines; and the judge decides. Under 8 C.F.R. 1240.8(d) you carry the burden of proving eligibility and that adjustment should be granted in discretion. A grant ends the proceedings with a green card. A denial comes with a removal order, which is appealed to the Board within 30 days; see after a removal order. Filing deadlines for the application package are on the deadlines page.
Read next: the waivers, administrative closure, removal of conditions in court, or the individual hearing.
Common questions
Can USCIS decide my green card while I am in removal proceedings?
Generally not. Under 8 C.F.R. 1245.2(a)(1), the immigration judge has exclusive jurisdiction over an adjustment application filed by a respondent in removal proceedings. The exception is an arriving alien, a category that turns on how you came to the port of entry and how the Notice to Appear charges you, whose adjustment application is decided by USCIS even while the court case is pending. USCIS also decides the underlying family petition in every case.
I entered without inspection. Can the judge adjust my status?
Under INA 245(a) adjustment requires that you were inspected and admitted or paroled. A person who crossed without inspection does not meet that requirement unless INA 245(i) applies, which covers the beneficiary of a petition or labor certification filed on or before April 30, 2001, on payment of a $1,000 statutory sum in addition to the government filing fee. A person waved through at a port of entry without questioning was admitted under Matter of Quilantan, and that admission counts. Other paths, such as a later parole, are reviewed case by case.
My spouse filed an I-130 but USCIS has not decided it. What happens to my court case?
The judge cannot approve the I-130 and cannot grant adjustment without it. The judge can continue the case for good cause under 8 C.F.R. 1003.29 while USCIS decides, applying the factors in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), or administratively close it. If USCIS is not moving at all, a mandamus action in federal court may compel a decision; that is handled at uscisdelay.com.
What is the government fee for Form I-485?
For an I-485 filed with or decided by the immigration court, the government fee is $2,980 as of September 2026: the $1,440 USCIS fee plus a $1,540 fee added by the 2025 reconciliation law, for filings postmarked on or after February 1, 2026. It is a government filing fee and is not our legal fee. Waivers filed alongside on Form I-601 carry their own USCIS fee, on Form G-1055, which we confirm with you before filing.
Tell us where your case is. We will tell you what is still possible.
You get a free case review with an attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.