I have been married to a Greencard holder since March 2013 who will apply for citizenship in May '14. My F-1 visa is expiring in August. We have filed the I-130 form and the I-485 but they rejected the I-485 because my priority date has not been established. Can I send my I-485 once I receive the I-797 for the 130?
Will I have to leave the country in the meantime and file through my consulate or can I stay in the US until everything has been approved?
You cannot file I-485 until your priority date if current. Whether you will have to leave the country to obtain a green-card when your priority date is current depends on whether you will be in status then or not. If you have to leave the country to go through the consulate, then you will not have to file I-485. You need to consult with an attorney individually.
Ismail T. Shahtakhtinski, Esq.
Attorney & Counselor at Law
I.S. Law Firm, PLLC
1199 N Fairfax St., Ste 702
Alexandria, VA 22314
Tel: (703) 527-1779
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I-485s can only be filed when there is a visa immediately available. i.e. the priority date is current or you are the spouse, minor child, or parent of a US citizen.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.
Unfortunately, you cannot file an I-485 in that situation since it is not an immediate petitioning category
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Had you talked to an immigration attorney prior to acting, you would have known that you cannot file I485 until several years from now or your spouse becomes a citizen or the reform kicks in, whichever comes first.
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