You married a U.S. citizen, and one of you is in immigration court. Or you are about to marry, and the Notice to Appear is already on the kitchen table. The question is the same either way: does the marriage help, and what happens to the court case now?
The short answer, as of September 2026: the marriage can still lead to a green card, but the law presumes it is suspect, and the court case does not stop while you prove otherwise. Since 1990, a marriage entered while removal proceedings are pending generally supports a green card only if the couple proves it genuine by clear and convincing evidence (INA § 204(g); INA § 245(e)) and asks for that exemption in writing, as the regulations require. Meanwhile, a federal court vacated the rule that allowed immigration judges to pause cases, on June 22, 2026. So, as of September 2026, the case keeps moving, and what matters is whether there is something the judge can grant, or whether this is one of the cases where USCIS, not the judge, decides the green card.
This page explains the presumption, the exemption you have to ask for, what “clear and convincing” looks like in practice, and what happens to the court case in 2026. It builds on our guide to adjusting status in immigration court, which covers the judge’s side of a green card case in detail.
Can I get a green card through a marriage that happened during removal proceedings?
Yes, but not on the ordinary terms. A marriage-based green card normally asks whether the marriage is real and whether the immigrant is eligible. When the wedding took place while removal proceedings were pending, the law adds a third question, asked first: can the couple prove, by clear and convincing evidence, that they did not marry to beat the case?
Two provisions of the Immigration and Nationality Act work together. INA § 204(g) bars approval of the I-130 petition, and INA § 245(e) bars adjustment of status, when the marriage took place during the period when proceedings “are pending regarding the alien’s right to be admitted or remain in the United States.” The bar lifts if the couple proves by clear and convincing evidence that the marriage was entered in good faith, was valid where it took place, was not entered to get the immigrant a green card, and involved no payment for filing the petition (other than to a lawyer) (§ 245(e)(3)).
Three timing points decide whether the presumption applies at all:
- When the period starts. For current cases, the period begins when the Notice to Appear is filed with the immigration court, not when ICE hands it to you (8 C.F.R. § 245.1(c)(8)(i)). A marriage after service but before the court filing falls outside the period. Get your court records to find the date; our guide to getting your immigration court records explains how.
- When it ends. The period ends when proceedings end: when the judge or the Board terminates them, when the charges fail, when the Notice to Appear is cancelled, when a federal court grants review, or when the person departs under an order (§ 245.1(c)(8)(ii)).
- The two-year exception. The bar also lifts if the immigrant spouse lives outside the United States for two years after the marriage (§ 245.1(c)(8)(iii)(E)). For most families that is not a plan, but it is part of the law.
Why does the law treat these marriages as suspect?
Because Congress decided in 1986 that a wedding held after deportation proceedings had begun was, as a group, too likely to be a strategy. The Immigration Marriage Fraud Amendments of 1986 made a marriage during proceedings an absolute bar to adjustment of status; the petition could be approved only after the spouse had lived abroad for two years. The Immigration Act of 1990 softened it into the rule we have now: a presumption the couple can overcome with clear and convincing evidence. That is a higher standard than the ordinary marriage case, which asks only whether the evidence shows the marriage is more likely real than not.
I have practiced immigration law since 1996, and the early years showed me what the presumption felt like on the ground. In the late 1990s, a local immigration office near where I practiced was run by an officer who made no secret of his method: the way to test a marriage made during deportation proceedings was to wait. The petition went into a drawer. In the case I remember, it stayed there about a year and a half. The marriage did not outlast the drawer, and the young man, who had come to study and fallen out of status, was deported. The law allowed a real marriage to win. The office’s practice made time the test.
Today the test is written down, and a real marriage with the right record passes it. The rest of this page is about building that record and managing the court case while you do.
How do we ask for the bona fide marriage exemption?
In writing, twice, with evidence, and with no special form or fee. This is the step most often missed, and the regulation is unforgiving about it.
- With the I-130. The U.S. citizen spouse files the petition with USCIS and attaches a written request for the exemption, stating the reason and supported by documents (8 C.F.R. § 204.2(a)(1)(iii)(A)). The burden of proof at this stage is on the petitioner.
- With the I-485. The immigrant spouse makes a second written request with the adjustment application (8 C.F.R. § 245.1(c)(8)(iv)). If the I-130 was approved under the exemption, that approval is “primary evidence” of eligibility, and additional evidence is needed only if requested (§ 245.1(c)(8)(v)).
Two cautions. First, an I-130 approval that did not rule on the exemption is not the same thing as one that did; check the approval notice, and if it is silent, make the full showing again with the I-485. Second, the regulation states the consequence plainly: an adjustment application filed during the prohibited period “shall be denied” unless the applicant establishes an exemption (§ 245.1(c)(8)(vi)). A strong marriage with no written request is a denied application.
The current USCIS fee for a paper I-130 is $675 ($625 online), per the USCIS G-1055 fee schedule (edition of September 9, 2026). Check it before filing; the exemption request itself carries no fee.
What counts as clear and convincing evidence of a real marriage?
Evidence that the relationship was real before the case gave anyone a reason to marry, and that the couple lives as a married couple now. The regulations list the usual categories: joint ownership of property, a lease showing a shared home, commingled finances, birth certificates of children, and sworn statements from people who know the couple (8 C.F.R. § 204.2(a)(1)(iii)(B)). The affidavit rules are specific: each one must give the writer’s full name, address, date and place of birth, relationship to the couple, and a detailed account of how they know the marriage is real.
The Ninth Circuit, which covers Montana, has shown what falls short. In Yepremyan v. Holder, 614 F.3d 1042 (9th Cir. 2010), the court summarized its earlier ruling in Ahmed v. Mukasey, 548 F.3d 768 (9th Cir. 2008): “a copy of a marriage certificate, a visa application, photographs of the wedding, and a single joint phone bill were insufficient.” In Yepremyan itself, a marriage certificate and two vague affidavits saying the couple looked “happy” failed too.
What works, in our experience, is a record with depth and history:
- The relationship before the case. Messages, photographs, travel, and introductions to family from before the Notice to Appear. The presumption is about timing, so evidence that predates the court case does the most work.
- A shared life now. A lease or deed in both names, joint bank accounts actually used for household bills, insurance listing each other, and tax returns filed as married.
- People who know you. Detailed affidavits from friends, family, employers, or clergy who have watched the relationship over time, written in their own words.
- Consistency. Every date, address, and name in the petition should match every prior filing. An inconsistency is not fatal, but an unexplained one invites the question the presumption already asks.
Do not pad the file with documents manufactured for the case, and do not coach anyone’s affidavit. Officers read hundreds of these files. Authentic, specific, and slightly untidy evidence reads as a marriage; a perfectly matched set of form letters reads as the opposite.
What is a “Stokes interview,” and should we be afraid of it?
A “Stokes interview” is the name practitioners use for a marriage interview in which the officer questions each spouse separately and then compares the answers. The name traces to Stokes v. United States, INS, 393 F. Supp. 24 (S.D.N.Y. 1975), a New York class action over how the old INS investigated marriage petitions. In a marriage-during-proceedings case, expect the interview to be thorough.
Our experience with these interviews is in Montana, and in that experience a genuine couple who have prepared by reviewing their own history, not by memorizing answers, come through them well. The questions are about ordinary life: who wakes up first, where the television is, what you did last weekend, how you met. Spouses who live together know these things. Couples who disagree on a small detail should say so honestly; real spouses misremember small things, and officers know it.
As for timing: in our recent Montana cases (as of September 2026), an I-130 for a marriage entered during proceedings has often taken well over a year to reach an interview, sometimes around 500 days. That is our observation, not a published figure; check the USCIS processing-times tool for the current posted range. Processing times shown are a snapshot as of the date indicated and change frequently.
Does marrying a U.S. citizen pause or end my court case?
No. The marriage does not stop the case, and as of September 2026 immigration judges have no regulation that lets them put the case on hold while USCIS works on the petition.
For years, the tool for this was administrative closure: the judge took the case off the active calendar until the petition was decided. A 2024 Justice Department rule had expanded it. On June 22, 2026, in State of Texas v. U.S. Department of Justice, No. 7:26-cv-00070 (N.D. Tex.), a federal court entered a consent judgment that vacated that rule in full, permanently barred its enforcement, and declared that no statute authorizes immigration judges to indefinitely administratively close cases. Cities and a legal-services group that were denied permission to intervene have appealed to the Fifth Circuit (No. 26-10794). The district court refused to stay the judgment, and on September 29, 2026, the Fifth Circuit also denied a stay pending appeal; as of October 6, 2026, the appeal is still pending and the vacatur remains in effect.
What remains is the continuance: a postponement for good cause. The governing test, from Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), which built on Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), asks mainly whether the pending petition is likely to be approved and whether approval would change the outcome of the case. In 2025 and 2026, the Board has been reversing judges it sees as too generous. In Matter of Pinzon Rozo, 29 I&N Dec. 507 (BIA 2026), it reversed a long continuance to wait for a distant visa, and said DHS’s opposition “is also an important consideration.” In the Ninth Circuit, Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011), held that a judge abused his discretion by denying a continuance for a pending spousal I-130 without applying the Board’s guidelines. Our guide to adjustment in immigration court walks through the continuance standard in more detail.
The practical point: file the I-130 early, with the written exemption request, and arrive at every hearing able to show where it stands. A continuance is something you earn with a record, not something the marriage gives you.
Which path applies to me: the immigration judge, or USCIS?
It depends first on how the immigrant spouse entered the United States. That one fact decides who has the power to grant the green card, and whether there is a green card case to bring at all.
Admitted or paroled, and not an “arriving alien”: the judge decides
If the spouse entered with a visa or was paroled and was then placed in proceedings inside the country, the immigration judge has exclusive jurisdiction over the adjustment application (8 C.F.R. § 1245.2(a)(1)(i)). USCIS still decides the I-130; the judge decides the I-485. For this spouse, adjustment before the judge is itself the relief the case needs, and the marriage, with the exemption, is what it rests on. A judge who is satisfied can grant the green card and close the case in one hearing.
An “arriving alien”: USCIS decides, even while the case is open
People who came to a port of entry and were paroled in, rather than admitted, are generally “arriving aliens,” even if their court case began years later inside the country (8 C.F.R. § 1001.1(q)). For them the rule flips: the judge has no jurisdiction over the adjustment application except in a narrow advance-parole situation (8 C.F.R. § 1245.2(a)(1)(ii)), and USCIS keeps it, even while proceedings are pending and even after a final order (8 C.F.R. § 245.2(a)(1); Matter of Yauri, 25 I&N Dec. 103 (BIA 2009)). Whether a particular person is an arriving alien turns on the entry documents and the parole history, so confirm it before anything is filed. If you were paroled in, our page on options for former parolees is a useful companion.
Entered without inspection: usually no adjustment case in court
A spouse who crossed the border without being inspected generally cannot adjust status at all, in court or at USCIS, because adjustment requires an admission or parole (INA § 245(a)). The main exception is a person grandfathered under § 245(i) by a petition or labor certification filed by April 30, 2001, who pays a $1,000 penalty; filings made after January 14, 1998 also require physical presence on December 21, 2000.
For everyone else, the usual route for a U.S. citizen’s spouse is to process abroad after an I-601A provisional waiver of the unlawful-presence bar. But the regulation bars the I-601A for anyone in removal proceedings “unless the removal proceedings are administratively closed” (8 C.F.R. § 212.7(e)(4)(iii)), and as of September 2026 immigration judges have no regulation authorizing administrative closure. That leaves a spouse in this position with few doors: another form of relief the judge can grant, an argument to end the case, or a harder conversation about departure. (A person who already has a final removal order is in a different position: the regulation allows an I-601A once USCIS has granted permission to reapply for admission on Form I-212 (§ 212.7(e)(4)(iv)), though that route carries its own arrest risk.) This is where a consultation earns its cost. Our guide to marrying someone without status covers the underlying rules.
Can the judge still end the case so USCIS can decide it?
Sometimes, but as of September 2026 it is an argument, not a right, and we would not build a plan on it.
Termination ends the court case without an order. It matters here for two reasons: it can send the green card case to USCIS, and it ends the marriage-during-proceedings period, so the § 245(e) bar no longer applies to a new application (8 C.F.R. § 245.1(c)(8)(iii)(C), (vii)).
The ground has shifted twice. The 2024 rule had written specific termination grounds into the regulations, including one for a person who appears eligible to adjust before USCIS. The June 22, 2026 judgment vacated that rule in full, so those grounds no longer have regulatory force, even though the printed Code of Federal Regulations may still show them. What remains is narrower: termination where the government cannot prove its charges, a handful of specific regulations, and the limited authority the Attorney General recognized in Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022), including where termination is necessary for the person to seek relief before USCIS. That decision has not been overruled, but it described itself as interim guidance pending rulemaking, and the rulemaking it anticipated has now been written and struck down. As of September 2026, no Board or Attorney General decision has said how much of it survives. The Board had already been strict before the vacatur: in Matter of Roque-Izada, 29 I&N Dec. 106 (BIA 2025), a Cuban Adjustment Act case, it reversed a termination where the judge could decide the adjustment himself and the USCIS route was speculative.
So where did the old successes come from? Over the years, the cases that ended with termination and a green card at USCIS shared a pattern. The couple had been together long before the case. The I-130 was filed immediately, with the exemption request. The judge granted time, the petition was approved, DHS did not stand in the way, and the case was terminated so the adjustment could proceed at USCIS, sometimes followed years later by citizenship. More recently, the version that has worked involves a spouse whose green card case genuinely belongs to USCIS, with complete adjustment packages filed alongside the motion so the judge can see that the next step is real. That is the shape a termination request needs today: a concrete reason USCIS, not the court, is the right place, and a file ready to go there.
What does it cost to adjust status in immigration court?
More than at USCIS, because two fees stack. The I-485 keeps its USCIS fee in court: $1,440 on paper under the G-1055 fee schedule (edition of September 9, 2026). On top of it, the One Big Beautiful Bill Act added a separate immigration-court fee, charged “in addition to any other fees authorized by law,” to anyone who files an adjustment application with an immigration court or whose application is adjudicated there (8 U.S.C. § 1812(a)). That court fee is $1,540 through September 30, 2026, and $1,590 for filings on or after October 1, 2026 (91 Fed. Reg. 61447). A first-time I-485 filed in court therefore costs $3,030 from October 1, 2026, against $1,440 for the same form at USCIS, plus the $675 I-130 either way.
One variation: when USCIS denies an I-485 and the applicant renews it before the judge, a second USCIS fee has not historically been required. In our recent cases sent to court after a USCIS denial (as of September 2026), judges have not asked for the court fee at the first hearing. But the statute makes that fee due “before such application is adjudicated,” so budget for it before the final hearing. Both figures change every year; check them before filing.
Can ICE arrest me at a marriage interview?
It has happened, and a pending I-130 or I-485 is not protection from arrest. As of September 2026, federal district courts in several states have heard challenges to ICE arrests at USCIS adjustment interviews, and some have granted individual temporary restraining orders or ordered release in particular cases. The one appellate ruling we have found is narrow: on August 14, 2026, in Sanchez v. Mullin, No. 24-1487 (4th Cir.), the Fourth Circuit vacated and remanded a Maryland judgment that had protected couples with final removal orders pursuing provisional waivers through the Baltimore field office. The court said the case “does not present a general challenge to the practice of arresting noncitizens” at immigration interviews, so it neither approved nor forbade such arrests generally.
For a couple in active removal proceedings, the person is already known to ICE and already has a court date, which is a different situation from someone with an old final order. Still, go to the interview with a lawyer if you can, bring your hearing notice, and talk to counsel beforehand about any risk specific to your history. This is a volatile area; what is true in September 2026 may not be true by your interview date.
Should I file for asylum to buy time for the marriage case?
No, not as a strategy. In the late 1990s and early 2000s, a weak asylum application was sometimes filed to keep a case open while a marriage petition worked its way through; that was the era’s practice, and it is not advice for today, for three reasons.
- The frivolous-application bar is permanent. A person found to have knowingly filed a frivolous asylum application, after being warned of the consequences, becomes permanently ineligible for any benefit under the immigration laws, which includes the green card through the marriage (INA § 208(d)(6)).
- Asylum now has fees with teeth. Since the One Big Beautiful Bill Act took effect in July 2025, asylum carries a filing fee and an annual fee, and the Board held in Matter of L-F-R-, 29 I&N Dec. 787 (BIA 2026), that an asylum application should be pretermitted or deemed abandoned if the annual fee is not paid on time.
- It undercuts the marriage case. An asylum claim tells one story about why you are here; the marriage exemption requires clear and convincing proof of another. Contradictions between the two become evidence against the marriage.
A person with a genuine fear of return should, of course, seek protection on its own merits. That is a different decision from filing a claim as a placeholder.
What should we do first?
- Find out exactly where the court case stands. Get the Notice to Appear, the date it was filed with the court, the next hearing date, and the court assigned. In our experience (as of 2026), Montana cases are usually heard by a judge sitting in Portland, occasionally in Salt Lake City; confirm yours on the hearing notice or through EOIR’s automated system. Our overview of what to expect in immigration court covers the basics.
- Establish how the immigrant spouse entered. Admission, parole, arriving alien, or entry without inspection: the answer decides who can grant the green card.
- Gather the pre-marriage record now. The evidence that predates the court case is the evidence that answers the presumption, and it gets harder to find over time.
- File the I-130 promptly, with the written exemption request. Do not wait for the next hearing. For more on the petition itself, see our guide to the marriage-based green card process.
- Keep every hearing. Missing a hearing produces an order of removal in your absence, which turns a hard case into a much harder one.
Every one of these cases turns on facts that a general page cannot see: the entry, the dates, the history, and the judge. It does not matter which route you take, so long as it is the one that fits your family. If you want to walk through the options for your situation, you can contact our office to schedule a strategy consultation.
