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TPS holder- Out of status over years apply I-140, I-485

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  • TPS holder- Out of status over years apply I-140, I-485

    Hi,

    I came US as F-1 Visa, due to health reason I could not go to school and I lost my F-1 and been out of status for over 5 years. Last year got TPS.

    My husband also came as F-1 and able to maintain status and applying Green card through employment based.

    My question,
    Can he apply for me as spouse even though I was out of status over years but now I have TPS?

    Lets say, I am not qualify coz I was out of status. Does he need to include me on his I-140 form and I-485 even though I am not applying for GC.
    I guess what would be best way to handle his case so that it will not impact his application process.

    Appreciate your expert advise.
    Dan

  • #2
    Originally posted by Dansing View Post
    Can he apply for me as spouse even though I was out of status over years but now I have TPS?
    As his spouse, you are automatically a derivative beneficiary of his petition. However, as you are not in the Immediate Relative category and you were previously out of status (before you got TPS), I believe you are ineligible for Adjustment of Status in the US. Even though you will be in an employment-based category, 245(k) does not exempt you from the bar because you were out of status for more than 180 days.

    The other option is Consular Processing abroad, to follow-to-join him after he gets his permanent residency. You should not have the issue of an unlawful presence ban because you probably did not accrue any "unlawful presence", as you were on F-1 and were admitted for "D/S".

    Originally posted by Dansing View Post
    Does he need to include me on his I-140 form and I-485 even though I am not applying for GC.
    Absolutely. The forms ask for the current spouse and all children of the beneficiary. You are the current spouse, so you must be listed, or it won't have been honestly filled out. It doesn't matter where you are located or whether you want to immigrate or anything.

    This is my personal opinion and is not to be construed as legal advice.

    Comment


    • #3
      Thanks a lot for your feedback.

      Comment

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