by Heidi Meyers | Sep 30, 2026 | Articles
By Heidi J Meyers
If you find your spouse or life partner in removal proceedings and you are a US citizen or permanent resident, you may sponsor your foreign national spouse while he or she is in removal proceedings, and they may be able to adjust to permanent residency as relief from removal.
Once an individual is in removal proceedings, the marriage petition and application for adjustment to permanent residency are adjudicated separately, in a two-step process. The immigration judge does not have any jurisdiction over I-130 marriage petitions. Only the USCIS can adjudicate I-130 marriage petitions.
This article will focus on the particulars of I-130 marriage petitions and I-485 adjustment when the immigrant spouse is in removal proceedings, and not review the general requirements for a marriage petition and adjustment.
THE SCENARIO WHERE THE US CITIZEN AND FOREIGN NATIONAL PARTNER ARE NOT ALREADY MARRIED AT THE TIME THE FOREIGN NATIONAL IS PLACED IN REMOVAL PROCEEDINGS.
Marriage while in ICE detention/prison is difficult, bureaucratic and cumbersome.
Where the US citizen and his or her foreign national partner are not yet married, and the partner is arrested by ICE and detained, it can be extremely difficult to get married while the US citizen’s loved one is in immigration prison. Marriage while in immigration detention (a prison by any other name) is bureaucratic and cumbersome, and marriage requests can take months to be processed. Meanwhile detainees generally have to appear in immigration court every two weeks or so while they are locked up, and if there is no progress in actually getting married, the respondent immigrant will not have relief from removal.
In Turner v Safley, 482 U.S. 78 (Sup.Ct. 1987), the US Supreme Court extended the fundamental right of marriage to prison inmates. The marital relationship is constitutionally protected in prison settings:
“First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released…and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits…, property rights…, and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
Id. at 95-96. The Supreme Court applied a “rational basis” test to the Missouri prison restrictions on marriage, finding that the state regulations were an exaggerated response to security concerns.
The ICE policy regarding marriage requests in detention, ICE/DRO Detention Standards Marriage Request (Dec. 2, 2008), https://www.ice.gov/doclib/dro/detention-standards/pdf/marriage_requests.pdf, is relatively old. Both parties need to request permission to marry. The particular facility may require a security investigation, the marriage application may be subject to facility rules and discipline, and even if the facility clears the marriage based on security concerns, ICE may object to the ceremony before it proceeds. For example, review Rambarrat v. Lyons, No. 9:26-cv-448 (ECC) (NDNY 2026), regarding the right to marry while in ICE detention, in the context of a habeas petition. The attorney should also review state law and local procedures regarding marriage while in ICE detention/prison.
Hopefully, the immigrant spouse will be released through a bond hearing or a habeas petition, and the couple can then more easily arrange their wedding ceremony.
The US citizen petitioner must explicitly request an exemption under 8 CFR 204.2(a)(1)(iii)(A) when filing the I-130 marriage petition.
There is a higher burden to prove good faith, genuine marriage, if the US citizen spouse and respondent immigrant get married when removal proceedings are already pending. The statute has a bar to approval of an I-130 marriage petition, if the beneficiary was already in removal proceedings at the time of the marriage.
INA §204(g) is entitled, “Restriction on petitions based on marriages entered while in exclusion or deportation proceedings”
See, INA § 204(g); 8 U.S.C. § 1154(g):
“a petition may not be approved to grant an alien immediate relative status or preference status by reason of a marriage which was entered into during the period described in section 1255(e)(2) . . . until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage.”
Id. There is also a bar to adjustment based on a married entered into while in removal proceedings, INA §245(e); 8 U.S.C. §1255(e).
However, there is the bona fide marriage exemption, which waives the INA § 204(g) and INA §245(e) bars. The US citizen petitioner must explicitly request an exemption under 8 CFR §204.2(a)(1)(iii)(A) when filing the I-130 marriage petition. There is no separate form to file or fee to pay when requesting the exemption.
THE SCENARIO WHERE THE US CITIZEN PETITIONER AND FOREIGN NATIONAL ARE ALREADY MARRIED WHEN THE IMMIGRANT SPOUSE IS PLACED IN REMOVAL PROCEEDINGS.
If husband and wife are already legally married when the NTA (Notice to Appear in immigration court) is issued, this makes it much easier to file the marriage petition, and obtain enough time from the immigration court for USCIS to adjudicate it. Of course, the couple still needs to prove that the marriage is a genuine marriage not for immigration purposes.
THE ATTORNEY NEEDS TO MAKE A MOTION FOR A CONTINUANCE IN IMMIGRATION COURT FOR USCIS TO ADJUDICATE THE I-130. THE ATTORNEY SHOULD ALSO MOVE FOR ADMINISTRATIVE CLOSURE OR TERMINATION IN ORDER TO PRESERVE THESE ARGUMENTS ON APPEAL.
In order to obtain enough time for USCIS to adjudicate the marriage petition, the attorney should make a motion for a continuance. Under the current administration, immigration judges will likely not grant a motion for administrative closure, but the attorney should still include arguments in favor of administrative closure in order to preserve appeal.
Under the current administration, the most likely path to allow time for USCIS to adjudicate the I-130 is through a motion for a continuance, to try to get the case adjourned for a couple of years. According to federal regulations, 8 CFR §1003.29, a motion for a continuance in removal proceedings may be granted for “good cause”. Also, under 8 CFR §1240.6, after the hearing has commenced, the immigration judge may grant a reasonable adjournment on his or her own, or upon application by the respondent or the ICE prosecuting attorney.
Under Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), “An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.”
Please note, this holding depends on: 1) no opposition by the ICE attorney (OPLA, DHS prosecuting attorney; 2) the marriage petition is prima facie approvable; 3) the respondent is prima facie eligible for adjustment; 4) does the respondent merit adjustment in the exercise of discretion?; and 5) the reason for the continuance and any other procedural factors.
However, recent caselaw holds that the respondent will actually have to show more than prima facie eligibility, rather a likelihood of success, in order to be granted a continuance, Matter of L-A-B-R-, 27 I&N Dec. 405 at 413 (AG 2018), a decision issued by then-Attorney General Jeff Sessions during the first Trump term. The respondent also needs to show the approval of the collateral relief will materially affect the outcome of the removal proceedings. In Matter of Pinzon Rozo, 29 I&N Dec. 507 (BIA 2026), while it involved SIJ (Special Immigrant Juvenile) rather than an I-130 marriage petition, has implications for cases where the petitioner is a lawful permanent resident rather than a U.S. citizen, if there is a backlog in visa numbers in the F-2A category. In Pinzon Rozo, even though the SIJ application was approved, due to the backlog in visa numbers, the child was not immediately eligible for adjustment to permanent residency. The BIA held that “The Immigration Judge erred in granting the respondent, who has an approved petition for special immigrant juvenile classification, a continuance to await the availability of a visa, where the respondent’s priority date will not be current for an uncertain and lengthy period of time.”
In Pinzon Rozo, the BIA also emphasized the additional factor, not present in Hashmi, of exercising reasonable diligence in pursuing the visa petition. “...in seeking a continuance, the respondent bears the burden to show he “demonstrated reasonable diligence in pursuing the collateral adjudication.” Matter of L-A-B-R-, 27 I&N Dec. at 412. The respondent has not offered any explanation for why, despite last entering the United States in 2018, he waited to file his visa petition until 2025 at the age of 20.” Thus, couples who have been married for years, but the US citizen spouse has only recently filed an I-130 marriage petition, the immigration judge may wonder why it took them so long, and the US citizen spouse did not sponsor their foreign national wife or husband earlier.
Under the current administration, requesting administrative closure of removal proceedings so that the USCIS will have time to adjudicate the I-130 marriage petition is likely no longer a realistic avenue. Administrative closure allows the immigration judge to temporarily remove a case from the active docket, and temporarily pause removal proceedings. Administrative closure means that the case is still pending in immigration court, but there is no future court date. Either party may then move to put the case back on the calendar, and have the immigration judge schedule a court date.
During the first Trump administration, and now during the second, making a motion for administrative closure of removal proceedings for a pending I-130 will likely be denied. In Matter of Castro-Tum, 27 I&N Dec, 271 (A.G. 2028), the Attorney General held:
“Immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. To the extent the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), are inconsistent with this conclusion, those decisions are overruled.”
The Trump administration re-interpreted federal regulations granting immigration judges broad powers to adjudicate and dispose of cases, basically stripping immigration judges of their power to administratively close cases so respondents would have time to pursue relief from removal:
“Neither 8 C.F.R. § 1003.10(b) nor 8 C.F.R. § 1003.1(d)(1)(ii) confers the authority to grant administrative closure. Grants of general authority to take measures “appropriate and necessary for the disposition of . . . cases” would not ordinarily include the authority to suspend cases indefinitely. Additionally, 8 C.F.R. § 1240.1(a)(1), which authorizes immigration judges to take actions that “may be appropriate” in removal proceedings, and 8 C.F.R. § 1240.1(c), which empowers immigration judges to “otherwise regulate the course of the hearing,” do not entail an authority to grant indefinite suspensions.” Id.
During the Biden administration, Attorney General Garland overruled Castro-Tum, as well as establishing a federal regulation explicitly allowing immigration judges to grant administration closure, and administrative closure became available to respondents married to US citizens or permanent residents in order to have time to get the I-130 marriage petition approved, and for those married to permanent residents to await the priority date or the petitioner’s naturalization.
But here we are in Trump 2.0, and immigration judges are systematically denying motions for administrative closure. See this excellent practice advisory by ILRC in order to preserve your arguments in favor of administrative closure for appeal, https://www.ilrc.org/resources/administrative-closure-termination-and-texas-v-department-justice.
ADJUSTMENT MAY BE IN REMOVAL PROCEEDINGS BEFORE THE IMMIGRATION JUDGE, OR IF THE IJ TERMINATES PROCEEDINGS, USCIS MAY ADJUDICATE THE ADJUSTMENT.
Once the marriage petition is approved, the Immigration Judge may hold a hearing to adjudicate the I-485 adjustment application, or if removal proceedings are terminated, then USCIS will adjudicate the I-485 adjustment.
The exception is where the immigrant is considered an arriving alien, in which case, the USCIS has jurisdiction over the adjustment.
We will not review the requirements for adjustment to permanent residency here, as this article is focused on the particular issues for immigrants in removal proceedings who are married to a US citizen.
by Heidi Meyers | Sep 24, 2026 | Articles
By Heidi J Meyers
The exciting decision by Judge Leo Sorokin, in the State of California v Mullin case, 1:25-cv-13829-LTS (Dt Mass), holding that the $100,000 H-1B fee is an unlawful tax, on June 8, 2026, came plunk in the middle of employers hurriedly filing their H-1B cap-subject petitions by the June 30, 2026 deadline, for those selected in the March H-1B lottery.
The favorable decision brought a temporary sigh of relief to employers who at first believed they would no longer be required to pay the $100,000 H-1B entry fee for those beneficiaries currently outside of the U.S. whose H-1B petitions were filed after September 21, 2025 12:01 am EDT, and for those in the U.S. but for whom a change of status was not likely to be granted, and would have to consular process overseas.
But wait! Payment of the $100,000 H-1B entry fee was back on, less than one week later. On June 12, 2026, Judge Sorokin issued a temporary administrative stay so that his order would not go into effect while the Government appeals. The Government then filed an appeal with the First Circuit which is pending.
In another reversal, on July 24, 2026, the First Circuit has fortunately ruled against the Government, denying their request for a stay. Meaning that for now, employers are not required to pay the $100,000 H-1B entry fee. State of California v. Mullin, Dkt No 26-1699 (1st Cir. 07/24/2026).
However, employers still face a high level of uncertainty, as there are several cases pending in different courts, and the issue may likely end up with a split in the circuits, and at the Supreme Court.
Thus, an employer could go through the H-1B petition process with USCIS, get an approval and get ready for the beneficiary’s interview at the US consulate or embassy abroad, and then suddenly have to pay the $100,000 fee due to a reversal in the federal case law.
The consequences of the $100,000 H-1B entry fee fall differently on different entities and individuals.
As for private business, generally cap-subject employers, some may be able and willing to pay the $100,000 entry fee, and view it as “a cost of doing business”. Apparently, this is very few employers, according to a declaration by the Acting Associate Director of USCIS SCOPS, Cara Selby, submitted by the Government in State of California v Mullin, affirming that only 85 settled payments had been made of the $100,000 H-1B entry fee as of February 15, 2026. This was submitted in the State of California v Mullin case, 1:25-cv-13829-LTS (Dt Mass), and also submitted in the Global Nurse Force case.
For most US employers/companies, an additional $100,000 fee is outside the range of their budgets, an unbearable cost, meaning new initiatives are put on hold, and more work that would otherwise be done by domestic employees is being outsourced abroad. For example, Walmart has announced it would not be using the H-1B program to bring foreign professionals to the U.S. See, https://www.cnbc.com/2025/10/22/walmart-h-1b-visa-job-offers-trump-fee.html.
On top of the already high USCIS fees for the H-1B petition, particularly including premium processing, plus the amount of work involved, it is a deal-breaker and an exorbitant additional expense they are unable to bear.
Especially for state employers, nonprofits, colleges and universities as well as their affiliates, such as hospitals and medical centers, among others, payment of the $100,000 to bring foreign talent to the U.S. is an impossible additional expense that their stretched budgets are simply unable to bear.
Judge Sorokin found that these employers would suffer injury from the new policy in State of California v. Mullin. In particular, the $100,000 fee: 1) impedes their ability to hire educators for their primary and secondary schools, exacerbating existing teacher shortages; 2) negatively impacts their ability to staff public colleges and universities and stymies critical academic research; and 3) will lead to a decline in H-1B medical workers, which, in turn, will worsen staffing shortages in medical facilities and diminish access to healthcare. The policy’s impact on healthcare professionals “will cause cascading harm throughout the Plaintiff States” by impairing public healthcare providers’ ability to provide adequate services to residents and by heightening costs to state insurance programs. Id.
Judge Sorokin rejected the Government’s argument that there was a lack of jurisdiction due to consular nonreviewability, quoting the recent Pietersen case in the D.C. Circuit:
“it is well settled that when plaintiffs pursue forward-looking challenges to the lawfulness of regulations or policies governing consular decisions, courts may review them to assure that the executive departments abide by the legislatively mandated procedures.” Pietersen v. U.S. Dep’t of State, 138 F.4th 552, 560 (D.C. Cir. 2025) (citation modified). Here, Plaintiffs do not seek retrospective review of an executive officer’s decision to exclude a noncitizen but rather advance a forward-looking challenge regarding the lawfulness of the Policy carrying out the Proclamation. For these reasons, the Court rejects Defendants’ argument that the claims are not justiciable under the doctrine of consular reviewability…
Judge Sorokin’s reasoning followed closely the recent Supreme Court decision in Learning Resources, Inc. et al v Trump et al, 607 U.S. __ (2026) holding that IEEPA (the International Emergency Economic Powers Act) does not authorize the President to impose tariffs. Article 1, Section 8 of the U.S. Constitution specifies that Congress has the power to lay and collect taxes and duties. The Framers did not vest any of the taxing power in the Executive branch. Congress does not delegate its powers through ambiguous statutory text. There is no exception to the separation of powers for emergencies or foreign affairs.
In State of California v Mullin, Judge Sorokin concluded that the $100,000 H-1B entry fee was not a penalty (meaning a punishment), since hiring H-1B workers is legal. An obvious purpose of the policy is to raise revenue, even though it had not to date accomplished that purpose. The Supreme Court decision in Learning Resources found that tariffs collected by DHS constitute a tax. The $100,000 H-1B entry fee is a tax, regardless of what the payment is called.
The INA (Immigration and Nationality Act) does not delegate Congress’s taxing power to the President. Judge Sorokin found that INA 212(f) which allows the President to restrict entry of aliens and INA 215(a) are not a delegation of the Congressional power of taxation. As in Learning Resources, the Court is reluctant to read into ambiguous statutes extraordinary delegations of Congressional power.
The closely-related case, Global Nurse Force et al v Trump et al, 4:25-cv-08454-HSG (N.D. California) is currently pending. The plaintiffs have made a motion for class certification, to include the following class members:
All U.S. employers who have filed or will file an H-1B petition that is subject to the
$100,000 fee under the September 19, 2025 Proclamation, “Restriction on Entry of
Certain Nonimmigrant Workers,” or the Proclamation’s implementing guidance, or
would file such a petition but for the fee, which USCIS received on or between September 21, 2025 and September 21, 2026, to employ a qualified temporary nonimmigrant worker in a specialty occupation.
In contrast to Judge Sorokin’s decision in State of California v Mullin, Judge Howell in Chamber of Commerce of the USA, et al. v DHS et al., 25-cv-3675-BAH (D.D.C. 12/23/2025), found that the $100,000 H-1B entry fee was a lawful exercise of presidential authority under INA 212(f). However, this decision was issued on December 23, 2025, prior to the Supreme Court’s decision in Learning Resources. The US Chamber of Commerce and AAU (Association of American Universities have filed an appeal to the D.C. Circuit.
It will take time for all this federal court litigation to play out. Meanwhile, many employers, particularly those in healthcare and education, as well as other areas, may petition for foreign talent without currently paying the exorbitant costs associated with the H-1B. An employer should use premium processing when filing with USCIS in order to obtain an approval as quickly as possible and get an interview for the beneficiary abroad with the US consulate or embassy. However, due to closures of US embassies and consulates in Africa, as well as major backlogs in other consulates to process H-1Bs (for example in India), and the new rule that one must be a citizen or resident of the country where the US consulate or embassy is located, means that even if a US employer does their level best to expedite bringing foreign talent to the US through the H-1B program, there could be significant delays by which time the law has again changed and the $100,000 H-1B entry fee back on.
What if the $100,000 H-1B fee is eventually found unconstitutional, or at least unlawful and ultra vires under the INA? How will employer/petitioners get their money back?
The “H-1B Visa Payment to Remove Restriction Form” on the pay.gov website provides that if your application is not approved, a full refund will be processed. It is not clear if by “application” the Government means both the H-1B petition approval by USCIS, as well as the H-1B visa application approval by the Department of State. It provides that the employer/petitioner include their bank information in case of being refunded.
Will DHS actually give the money back? Or will it drag its feet, as it is currently delaying adjudications of all kinds of immigration applications, and even ignoring premium processing deadlines after employer/petitioners have paid the premium processing fees.
This is a drama which will continue...
by Heidi Meyers | Sep 24, 2026 | Articles
By Heidi J Meyers, copyright 2026 © all rights reserved.
While there are various bases for a J-1 waiver, this article will only discuss J-1 waivers based on persecution and waivers based on exceptional hardship to a U.S. citizen or permanent resident spouse or child. This article will not discuss No Objection waivers, IGA (Interested Government Agency) waivers or any other basis for a J-1 212(e) waiver.
The two-year foreign residency requirement for certain J-1 visa holders, is found in the statute, the Immigration and Nationality Act, INA 212(e), 8 U.S.C. 1182(e). This provision specifies that those subject to the two-year foreign residency requirement, are ineligible for an immigrant visa, adjustment of status, or nonimmigrant visa as an H-1B, H-4, any other H, or L-1 or L-2, until such person has resided or been physically present in the country of nationality or last legal permanent residence for a total of at least two years following departure from the U.S.
Foreign nationals in the U.S. in J-1 status who are subject to the 212(e) two-year foreign residency requirement, may apply for either the waiver based on persecution or the waiver based on hardship, but not both at the same time.
For those who are subject to the J-1 212 (e) two-year foreign residency requirement, and fear returning to their country, in the past you could have applied for asylum, by filing Form I-589 and supporting documents with USCIS, rather than apply for the J-1 waiver based on persecution. However, due to the policies of the current administration, applying for asylum is no longer a feasible option, due to the overwhelming denial rates of asylum by USCIS. According to the American Immigration Council, USCIS approval rates for the Form I-589 asylum application are a dismal 5.1%, shockingly low. See, https://www.americanimmigrationcouncil.org/uscis-immigration-filing-trends/.
Thus, if you fear persecution if you are forced to return to your home country and are subject to 212(e), applying for a J-1 waiver based on persecution is definitely the better option under current conditions.
While applying for asylum involves filing the Form I-589 and supporting documents with USCIS, if you are applying for a J-1 waiver based on persecution, you must initially file the DS-3035 online with the Waiver Review Division of the US State Department.
What are the legal differences between qualifying for asylum and qualifying for the J-1 waiver based on persecution? Asylum is more expansive in terms of grounds of eligibility. For asylum, the persecution may be due to one of five grounds: political opinion; religion; race; nationality; or membership in a particular social group. On the other hand, the J-1 waiver application, Form I-612, based on persecution only includes the grounds of political opinion, religion and race. Thus, for example, an applicant who fears persecution based on his or her sexual orientation as a member of a particular social group, or as being part of a particular family, would not fit within the grounds for the Form I-612 persecution waiver which does not include persecution based on social group (of course you can always also make arguments based on religion and political opinion, but this is for example). However, the current administration’s evisceration of the particular social group ground of asylum has changed the calculus in this regard. Another option where the fear of returning has to do with additional factors that are not persecution, such as medical or other issues, a hardship waiver may be more appropriate.
For asylum, the applicant has to show only a reasonable possibility, as low as a 10% possibility of being persecuted if returned to their home country. Whereas, for the I-612 persecution waiver, the applicant has to show a probability of being persecuted should they be returned, that they “would be persecuted”. A probability is more than a 50% likelihood. Again, while looking at the law on the books, asylum appears to be the more favorable option, due to the current administration’s hostility towards asylum-seekers and drastic policies, applying for the J-1 waiver through the DS-3035 and the Form I-612 with USCIS is likely preferable.
The J-1 waiver process for persecution is procedurally more complex than that for asylum. An affirmative asylum application goes to the USCIS Asylum Office for interview and USCIS makes a decision, whereas the J-1 persecution waiver is coordinated between two different government agencies, both the US State Dept Waiver Review Division and USCIS. First, the applicant would file a DS-3035 with the Dept of State and then file the waiver application Form I-612 with USCIS. If USCIS determines the case is approvable, it would refer the application to US Dept of State for a recommendation, and the State Dept would make a recommendation, which is then transmitted to USCIS, and USCIS would issue a denial or approval notice to the applicant.
Another consideration is processing time. As of June 2026, USCIS is showing that a Form I-612 J-1 waiver application based on hardship or persecution is taking about 20 months to process. Contrast this with the unpredictable and often many-years processing times for the I-589 asylum application.
Aside from the persecution waiver, there is also the J-1 waiver for exceptional hardship to a U.S. citizen spouse or child. In some situations, while it may be very dangerous to return to your home country, you may not be able to show that the harm you fear is on account of your political opinion, religion, or race for a J-1 persecution waiver. Even if you fear returning to your home country due to civil war or extreme violence by cartels or terrorists, it is not enough to show that you might get in the way of a bullet, or just happen to get blown up. There must be a nexus to one of the protected grounds. Also, there is a distinction in the law between discrimination and harassment, versus persecution, which is considered much more severe.
Thus, if your possible case for a persecution waiver may be weak, you may have the option of filing for a hardship waiver of the J-1 212(e) foreign residency requirement, if you have a U.S. citizen or permanent resident spouse or child who would suffer exceptional hardship should you have to return to your home country to fulfill the two-year foreign residency requirement.
USCIS considers exceptional hardship to be more than normal hardship, but a lower standard than extreme hardship, See, USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-2-part-d-chapter-4.
For example, you may have a U.S. citizen spouse or child with severe health issues, and who would not be able to access adequate health care and treatments in the home country. It may be impossible for your spouse to pursue their career in the foreign country, or you and your spouse may be of an age where it would be next to impossible to find a new job, because the vast majority of the population is much, much younger. The salaries you and your spouse would earn abroad may be laughably low, and not enough to support you and your family.
Other factors, such as discrimination, may tie into racial or religious persecution, but you may be on a stronger footing with showing hardship, depending upon the particular family’s circumstances and country conditions. While interracial, and inter-religious couples in the U.S. can find communities where they are accepted, in many foreign countries mixed marriages, religiously or ethnically, actually may put your family in danger. Certain countries have inflexible delineations based on ethnicity, religion, sect, color, clan. Crossing over between two groups may be considered unthinkable and intolerable.
Or, the idea of allowing your child to choose his or her religion may be abhorrent in the home country’s culture. The U.S.C. or permanent resident spouse or children may not speak the official or local languages, may be a different race or ethnicity, and the mere fact that they are American, and dress as Americans, may attract unwanted attention and create risk.
On the other side, you also have to show that your USC or LPR spouse and/or children would suffer exceptional hardship if they had to remain in the U.S. while you, the foreign national, remain abroad for two years. This must amount to more than the average hardships a family would suffer from being separated.
Another factor is the psychological and emotional hardships. Is the spouse suffering from anxiety or depression, would going to live in the home country exacerbate their already fragile condition? Would they be cut off from essential family support here in the U.S.? Does the child have an IEP and require special services at school? Does the child have any behavior issues due to emotional upset?
Of course, each applicant and family is different and has their own particular circumstances which need to be developed.
This article is for general informational purposes only and is not meant as legal advice.
by Heidi Meyers | Sep 24, 2026 | Articles
As background, USCIS has halted the adjudication of immigration petitions and applications for those born in, or citizens of, a list of 39 countries. This policy was developed in a series of USCIS memos.
One day after an Afghan national killed a National Guard member and critically injured another, on November 27, 2025, USCIS released a policy alert that adjudicators must immediately "consider relevant country-specific factors," namely whether an individual is from one of the countries identified in Presidential Proclamations restricting entry to the United States under 8 U.S.C. § 1182(f), as "significant negative factors when reviewing immigration requests." See, USCIS Policy Alert, Impact of INA 212(f) on USCIS’ Adjudication of Discretionary Benefits, PA-2025-26 (November 27, 2025).
USCIS issued a press release declaring that USCIS "issued new guidance allowing for negative, country-specific factors to be considered when vetting aliens from 19 high-risk countries" "in the wake of the shooting of two National Guard service members in Washington, D.C. Wednesday by an Afghan National."
On December 2, 2025, USCIS released a new policy memorandum, PM-602-0192, which 1) places a hold on all asylum applications, regardless of nationality, pending a comprehensive review of the process, 2) places an indefinite hold on benefit requests for noncitizens from countries listed in Presidential Proclamation 10949, which restricts the entry of noncitizens into the United States from certain countries, and 3) mandates that USCIS "[c]onduct a comprehensive re-review of approved benefit requests for aliens from countries listed in PP 10949 who entered the United States on or after January 20, 2021." See, USCIS Policy Memorandum, Hold and Review of all Pending Asylum Applications and all USCIS Benefit Applications Filed by Aliens from High-Risk Countries, PM-602-0192 (December 2, 2025).
On December 16th, 2025, the President announced an expansion as to which countries would be subject to entry restrictions pursuant to 8 U.S.C. § 1182(f). Proclamation No. 10,998, Restricting and Limiting the Entry of Foreign Nationals to Protect the Security of the United States, 90 Fed. Reg. 59,717 (Dec. 19, 2025).
USCIS issued a supplemental Policy Memorandum extending the halt on adjudications imposed by Policy Memorandum PM-602-0192. See, USCIS, Policy Memorandum Hold and Review of USCIS Benefit Applications Filed by Aliens from Additional High-Risk Countries PM-602-0194 (January 1, 2026). This expanded the use of country of birth or citizenship as a negative factor in adjudications, and the hold on adjudications, for those on the list of countries.
The fatal shooting of a member of the National Guard is tragic. However, the fact that one person committed a heinous crime does not legitimize halting immigration benefits for all foreign nationals who happen to have been born in a certain country. There are many wonderful immigrants from these countries who are honest, hard-working, beloved members of American families, valued employees of American businesses, and a benefit to our communities, and whose work is in the public interest of the United States.
On its web site, under Newsroom Alerts, USCIS issued “Update on USCIS’ Strengthened Screening and Vetting” (March 30, 2026), in which USCIS stated that it had established an internal review process for lifting holds on individual or group cases, requiring comprehensive review by multiple offices, including lifting holds on medical physicians. But it did not provide any way for a beneficiary or applicant to request that USCIS lift the hold on their immigration benefit, including I-765 work authorization applications.
USCIS failed to explain how the agency identifies applicants who are eligible for a lift from the pause on adjudications. Moreover, it did not provide any time frame for how quickly this review by “multiple offices”, could lift a particular hold on adjudication for a particular case.
The USCIS website update purports that holds have been lifted for foreign nationals from one of the 39 countries or with a Palestinian Authority passport, for the following exceptions:
- Those vetted through Operation PARRIS;
- Certain petitions filed by U.S. citizens;
- Intercountry adoption forms;
- Certain rescheduled oath ceremonies for naturalization;
- Statutory and regulatory decision issuance;
- Refugee registrations for South African citizens/nationals;
- Certain special immigrant visa petitions;
- Certain employment authorization documents;
- Asylum applications from non high-risk countries; and
- Applications associated with medical physicians.
It is unclear what “certain” means, when USCIS lists as exceptions “certain” US citizen petitions, rescheduled oath ceremonies, SIVs, and EADs (work permits). There has not been clarification on the meaning of this.
Dual nationals also continue to have the adjudication of their cases halted by USCIS, with premium processing requests and expedite requests routinely ignored.
Moreover, even though USCIS purportedly has lift the halt on adjudication for certain cases, it has not said it would not still consider a person’s place of birth or citizenship as a significant negative factor, pursuant to the November 27, 2025, USCIS Policy Alert, stating that adjudicators must immediately "consider relevant country-specific factors," namely whether an individual is from one of the countries identified in Presidential Proclamations restricting entry to the United States under 8 U.S.C. § 1182(f), as "significant negative factors when reviewing immigration requests." See, USCIS Policy Alert, Impact of INA 212(f) on USCIS’ Adjudication of Discretionary Benefits, PA-2025-26 (November 27, 2025).
Regardless, attorneys and beneficiaries/applicants from one of 39 countries are reporting that there has been no movement by USCIS to adjudicate pending cases, including for those who have already paid for premium processing.
The total lack of movement is reported also for “medical physicians”, thus the cases of doctors and medical researchers are still not being adjudicated, despite the policy update. USCIS is simply ignoring filings for premium processing by employers on behalf of medical physicians, as well as ignoring employer’s letters demonstrating the beneficiary doctor’s work is in the national interest and public interest of the U.S.
The only option at this point is to file an APA /mandamus action in federal court and litigate. We are happy to assist you, Law Office of Heidi J Meyers, 11 Broadway Suite 925 New York NY 10004, (212) 791-4007 or (646) 508-5225, [email protected].
This article is for informational purposes only and does not constitute legal advice.
by Heidi Meyers | Sep 24, 2026 | Articles
By Heidi J Meyers, copyright 2026 ©, all rights reserved.
The vast majority of intending couples would want their wedding to be in-person, that is a given. However, there are certain epochs, such as during and after the World Wars and during Covid, when it is extremely difficult to travel and to have an in-person marriage. This is one of those times.
This is compounded by the fact that, intending couples who face obstacles to getting married in-person together, are also likely to have other issues, such as the local US Embassy or Consulate is closed due to war or security issues, and/or the beneficiary may be from a country under a travel ban.
What is a proxy marriage? How is it different from a virtual marriage?
What is a proxy marriage? The statute, the INA (Immigration and Nationality Act), §101(a)(35) states:
(35) The term "spouse", "wife", or "husband" do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.
This requirement that the couple has to be physically present in each other’s presence, has been in the statute for a very long time, and USCIS policy has basically remained the same, so the old BIA case law from the 1950s and 1960s is still valid. The USCIS Policy Alert, PA-2025-23, Family-Based Immigration: Spousal Petitions (10/17/2025) summarizes old BIA caselaw and longstanding USCIS policy, although it does contain clarification regarding the differences between a virtual marriage and a proxy marriage, and confirms that same sex marriages are valid for immigration purposes, simply re-hashes the old caselaw dating from the 1950s..
A virtual marriage is one that is officiated remotely, and may or may not be a proxy marriage. For example, if the marriage is conducted over Zoom and the bride and groom are sitting together in one location while the officiant of the marriage is sitting in another location, this is not a proxy marriage. According to the USCIS Policy Manual:
Virtual Marriages
A virtual marriage is one that takes place remotely, usually through electronic media technology. The parties to the marriage may or may not be physically present together and are generally physically located in a place other than where the officiant to the ceremony is located.
The laws of the place of celebration govern the validity of the marriage. Each jurisdiction’s civil authorities set their own requirements for authorizing a marriage, including any requirements regarding the location of the parties and the officiant. A virtual marriage is valid for immigration purposes if it is valid in the state or country that issued the marriage certificate, and it does not violate the public policy of the United States or a state where the petitioner resides, or where the couple will reside. For the marriage to be valid for immigration purposes, the parties also must consummate the marriage after the ceremony if the parties were not physically together for the ceremony.
See, USCIS Policy Manual, Vol 6, Ch. 6, Spouses, https://www.uscis.gov/policy-manual/volume-6-part-b-chapter-6
Example of a proxy marriage: Mr. Hellno, is in the US on an H-1B. His family has arranged a marriage for him with his cousin, Ms. Pareshan. The families get the Nikkah (marriage contract) and have a small Nikkah ceremony in Pakistan. Ms. Pareshan participates in the Nikkah ceremony, but Mr. Hellno stays in the US working and is not physically present at the Nikkah.
While they have the Nikkah (marriage contract), the families never hold the shadi (public wedding ceremony). Mr. Hellno does not go back to Pakistan to see his bride. Ms. Pareshan goes to the US Embassy in Islamabad to apply for her H-4 visa. The H-4 is denied because it is a proxy marriage and it was never consummated.
What if Mr. Hellno had participated in the Nikkah via Zoom, does that make it a valid marriage for immigration? No, Mr. Hellno was in the US while his bride was in Pakistan. They were not physically present in the presence of each other. It is still a proxy marriage.
The backstory: Proxy marriage may or may not reflect on the bona fides of the marriage. Here, Mr. Hellno was not keen on getting married to Ms. Pareshan but felt pressured by his family and obligated to go through with it. He used his work as an excuse, first not to go back to Pakistan for the Nikkah and then indefinitely delaying the shadi. Each time his family insists that he return to Pakistan, he answers “Hell no!”
Consummation is only required for proxy marriages. The standard in-person marriage does not require consummation, as long as you can show the marriage is bona fide.
There is a consummation requirement only if the bride and groom were not together in each other’s presence at the marriage. If the spouses marry in the physical presence of each other, i.e., it is an in-person, legal marriage, there is no consummation requirement. See, for example, Matter of Peterson, A#14706662 (BIA 03/08/1968).
Example: while in their 80s and both widowed, US citizen Bob and Filipina Aurora meet each other in Connecticut and fall in love. It is extremely romantic, and the two are inseparable lovebirds. They have a beautiful wedding at the senior center with all their friends and family, and the marriage is legally registered in the State of Connecticut. They put up a big sign with a red heart and an arrow through it, “Bob and Aurora Forever!!!” While they love each other dearly and cannot be apart, since they are in their 80s they do not consummate the marriage. The USC husband Bob can still petition for his Filipina wife Aurora with USCIS because they had a legal, in-person wedding. No proof of consummation is required for approval of the I-130 marriage petition.
Once Aurora gets her green card, triumphantly, they whiz through the airport, each in their respective wheelchair. They are off to the Philippines to meet Aurora’s family. Eighty-five years old and having the time of their lives!
If it is a proxy marriage, the consummation has to be after the marriage. Consummation and even having children prior to the marriage does not suffice.
Consummation prior to a proxy marriage, even if the couple has children together prior to marriage, does not suffice to meet the consummation requirement. In In the Matter of W-, 4 I&N Dec. 209 (BIA 1950), the BIA held that under the predecessor of Section 101(a)(35), that a proxy marriage in Trieste Italy was not valid for immigration purposes, where the USC petitioner had his Army buddy (to whom he had given a power of attorney) stand in for him at the marriage. This was even though the couple had a child together prior to the marriage. Since there was no consummation after the marriage, it was not valid for immigration.
Similarly, in the Matter of B, 5 I&N Dec. 698 (BIA 1954), even though the husband and wife had lived together prior to the marriage and had three children together, the proxy marriage which took place after the USC husband had returned to the US, was not valid for immigration purposes because there was no consummation after the marriage.
No, you do not have to show that you have had physical relations to prove consummation. The fact that the couple has been together in person after the proxy marriage is enough to show consummation.
To prove consummation, you do not have to talk about your s_x life, and in fact these types of questions are not appropriate. If you have a proxy marriage, to show consummation it is enough for the USC petitioner to have gone to visit the beneficiary, or that the couple has lived together for any period of time after the wedding.
According to the USCIS Policy Manual, acceptable evidence that the parties consummated a proxy marriage includes but is not limited to, the following:
- The birth certificate of a child born to the couple, and listing both parents on the certificate, after the ceremony took place;
- Passport or airline tickets showing that the petitioner and alien beneficiary were in the same place at the same time subsequent to the marriage ceremony; or
- Evidence of residence together after the ceremony took place such as a joint lease or signed witness affidavits.
If it is not possible to get married in person due to the risks of traveling and the security situation, or the beneficiary is under a travel ban, then the solution may be a fiancé visa.
If you are unable to get married in-person and also would not be able to travel to see your beloved after the wedding, a fiancé petition, Form I-129F, may be preferable to trying to get married abroad. The fiancé visa, or K-1, allows the beneficiary to enter the US for 90 days in order to get married, and then file for permanent residency. While the fiancé visa generally requires that the couple have met each other in-person within the two years prior to filing the petition, there are exceptions.
The USCIS has discretion to waive the in-person meeting requirement if it 1) would result in extreme hardship to the petitioner; or 2) violate strict customs of the beneficiary’s foreign culture or social practice, for example, where marriages are generally arranged and bride and groom are prohibited from meeting or having any contact with each other until the wedding. 8 CFR 214.2(k)(2).
Additionally, if the beneficiary’s country of citizenship is one which is banned from immigrant visas, the beneficiary may still obtain a K-1 fiance visa.
Example: USC petitioner is not able to travel to Jordan to marry her fiancé, Mr. Habibi due to the ongoing war with Iran and the security situation. It would be an extreme hardship. Also, Jordan is subject to the recent travel ban effective January 21, 2025, allegedly due to public charge issues. See, https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-processing-updates-for-nationalities-at-high-risk-of-public-benefits-usage.html
Thus an immigrant visa through an approved marriage petition is not currently possible. However, the USC petitioner may still file an I-129F on behalf of Mr. Habibi as her fiancé. Fiance visas, K-1s, are not subject to the travel ban, which impacts immigrant visas.
Additionally, Mr. Habibi has a minor child from a prior marriage, and the child can be included in the fiancé petition. If they married, the USC petitioner would have to file two separate petitions, one I-130 for the husband and one for the stepchild. With the fiancé petition, both can be included in the same petition.
There are other practical problems aside from the legal ones. For example, there have been widespread closures of US embassies and consulates in the Middle East, and very limited flights. You will need a competent immigration attorney to assist you.
