Family Based GC Pick AOS or CP

[shardul811]

Hi Friends,

I need your advice in my current immigration situation.

 

My current status in USA is an Adjustment status pending in EB3 category and working on EAD. My sister filed my brother-sister petition back in 2003.

Last week, i received letter from NVC to pay the fee for Afidivit of support and all individuals. In the page it is also mentioned:

 

If the applicant intends to adjust status with U.S. Citizenship and Immigration Services (USCIS), contact the NVC before taking further action or making any payments.

 

I need your recommendation for Consular processing (CP) or Adjustment of Status(AOS).

Which one shall i pick (depending upon how long it take to get GC)? And if your recommendation is AOS then what is the process?

Do i just need to wait until priority date becomes current?

 

 

I appreciate your reply.

[JoeF]

Either way is fine.

For AOS, an I-485 is filed. If you already have an I-485 pending, do what it known as interfiling, i.e., replacing the underlying immigration petition (in your case, replacing the underlying I-140 with the I-130.)

[Attorney_21]

Shardul811:

 

In general, adjustment of status is the preferable method, if it's available. (You have many more "procedural due process" protections by virtue of the U.S. Constitution if you are filing from within the United States, as opposed to at a consulate).

 

You situation is complicated - here is the general process: You will need to notify the NVC that you intend to adjust status, and they will return the file to USCIS. You will need to contact USCIS in writing and advise them that you are requesting what USCIS refers to as a "Conversion" (and attorneys usually call an "interfiling") - essentially changing your I-485 from employment to family-based. This request cannot technically be made until the priority date is "current", and will need to include an I-864 Affidavit of Support.

 

There's no form to do this, and it occurs at the discretion of USCIS, so it generally requires some follow-up to actually make it happen.

 

You normally should not file a second I-485 (and you might not be eligible to do so, anyway) as USCIS discourages this practice.

[shardul811]

Thanks for the reply and providing the valuable input.

 

So, you meant it is not recommended to file another I-485 or i can not file another I-485?

When my priority date becomes current and i transfer my I-485, what would be my status?

I assume the same rule apply to my dependent. correct?

 

Shardul

[Attorney_15]

A person is not prohibited from filing an I-485 on an I-130 or I-140. So a person who is the beneficiary of two (or more) different visa petitions could be in a position of being eligible to file multiple I-485s. As long as the person meets the eligibility requirements to file the I-485, then the law does not prohibit the filing. 

 

On a practical level, USCIS usually will want to know at some point which I-485 is the one that the person wants to use. Is such insistence by USCIS warranted or needed? Not necessarily because the priority dates of both petitions may not be current at the same time. The right choice might to file multiple I-485 applications and explaining approve whichever one can get approved first. One also wants to be careful that a case pending at the NVC is not left without action for an entire year because such a failure could result in Department of State terminating the visa petition itself!

 

 

The wisest and safest course in these situations is to consult an experience attorney about your specific situation for specific legal advice.

[ken57210]

Hi,

 

I am also in the Family Base GC , AOS .

My PD is going to be current in Dec,15. I got the Email from NVC asking documents but I understood that i can go for AOS and I replied to NVC but didnt got any reply back from NVC.

What is the actual process which I have to follow?

If anybody knows , please assist me.

I read your thread and got some valuable information.

If possible, please reply.