Fort Lauderdale, FL asked in Immigration Law for Florida

Q: 1) Married to US citizen. Is I-130 still required or can I go straight with the I-485? (We got married in the US)

2) The I-130 process may take a 5-12 month. My TPS is set to expire in 4 months (01.22.2018). Will I still need to leave the US? What are my legal options to prevent my departure?

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1 Lawyer Answer

A: You should consult with a competent immigration attorney to explore all options. Briefly, however, if you are pursuing permanent residency based on the fact that your spouse is a U.S. Citizen, then yes, your U.S. Citizen spouse will need to file a Petition for Relative (I-130) on your behalf. Whether you are eligible to file simultaneously a Form I-485, Application to Adjust Status, depends on a number of factors, and your question above does not provide sufficient facts. That you indicate you have TPS and then pose the question about whether you "still need to leave the U.S." might indicate that your entry to the U.S. was not a formal inspection and admission, but it does not necessarily mean that. If you did last enter the United States without a formal inspection and admission, you may not be able to pursue adjustment of status, but might depending on the jurisdiction in which you reside in the United States. (There are 2 different Circuit Courts of Appeal that have concluded one who entered the United States without inspection and admission but who later was granted TPS is eligible for adjustment of status. The 11th Circuit Court of Appeals, which covers the State of Florida, has ruled otherwise.) If you traveled abroad and returned using advance parole acquired by virtue of your TPS, you may also be able to adjust status. Again, there are many factors not identified in your question that should be discussed in the context of a lawyer's office. I recommend that you schedule a consultation with a competent immigration attorney who can ask you many questions to get a clear idea of what your best path forward is.

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