AOS or CP? Which is preferable.

[Sripad]

I worked as a consultant for Employer A(a desi consulting company) and thorugh that company I applied for my Green Card process.As part of that, I got my Labor and I-140 approved a couple of yrs back.

Subsequently, due to personal reasons, I had to go back to India and I joined a MNC(Employer B) in India but my previous employer had my green card processing alive. I had even changed my GC process to consular processing since I went back to India.

Now, my present employer(Employer B) with whom I work, sent me to US on a work assignment(H1B) and now, my dates are close to becoming current for my Green card process(The date my GC process becomes current is Aug 2008 filed through Employer A).

1. Since I am in US now, ideally I can change my GC process from consular processing to adjustment of status. But, can I change it to adjustment of status after the dates become current or do I have to file a motion before the dates become current.

2. I would also like to know how good are the chances of getting the immigrant visa through consular processing so that it will be helpful to decide whether I should change it to adjustment of status or keep it as consular processing itself.

A speedy reply from the attorney as soon as possible will be really appreciated.

[JoeF]

CP is only possible for the original employer.

If you don't want to go back to that employer, your only option is AOS. You just file an I-485 when the PD is current.

[rani1876]

Good questions Sripad.

I dont think JoeF has replied to the point.

I look forward to more answers for this myself..

Thanks

[Sripad]

Whent the dates become current and I go for the consular processing, it is understood that I will be going back to my previous employer(Employer A) for my work when I get my immigrant visa stamped. Also, the Green Card is for future employment and so it cannot be tied to a particular employer though I understand that for some time after I get my immigrant visa stamped and come to US, I will have to work for the employer who filed by GC.

1. Please correct me if my above understanding is not right.

2. Since I am in US now, ideally I can change my GC process from consular processing to adjustment of status. But, can I change it to adjustment of status after the dates become current or do I have to file a motion before the dates become current.

It would be more helpful if there is a more specifc answer for my queries.

[pontevecchio]

"I can change my GC process from consular processing to adjustment of status"

There is no change involved. If your dates are current and you are in valid H1 status here file the AOS.

P is usually a near surety as opposed to AOS, all other things being equal.

The most impportant thing is whether the GC sponsor actually has a job for you which he intends for you to take up on GC approval. I say this because you choose to come in H1 status with an Employer other than your GC employer to the USA.

[rani1876]

There is no change involved. If your dates are current and you are in valid H1 status here file the AOS.

P is usually a near surety as opposed to AOS, all other things being equal.

pontevecchio :

- Did you mention "CP" is usually a near surety as opposed to AOS, all other things being equal ? Just want to confirm.

- Also, how many months does an average I-824 processing take and is it also a near surety?

Plz guide

Thanks

[pontevecchio]

"The most impportant thing is whether the GC sponsor actually has a job for you which he intends for you to take up on GC approval'

You have not responded to this statement.

[rani1876]

In the relevant context - My current GC sponsor (H1 employer) actually has a job for me which he intends for me to take up on GC approval (my 140 is approved). Now, if I decide to go back to my country with my PD not being current and wish to take up the GC job on approval:

- Is "CP" is usually a near surety as compared to AOS, all other things being equal ?

- Also, how many months does an average I-824 processing take and is it also a near surety?

Plz guide

Thanks

[Sripad]

According to my groundwork that I have done so far, chances of getting GC approval through AOS has better chances than through CP. But I hear a differnt version here. Can somebody corraborate on this and throw light on whether this is really the case?

Also, I am yet to get a foolproof answer to the below query I had raised:

2. Since I am in US now, ideally I can change my GC process from consular processing to adjustment of status. But, can I change it to adjustment of status after the dates become current or do I have to file a motion before the dates become current.

[Belle]

One advantage of filing for AOS is that it is easier to demonstrate bona fides of the job offer - you can simply start working for your former employer on EAD once you get that approved.

[JoeF]

According to my groundwork that I have done so far, chances of getting GC approval through AOS has better chances than through CP. But I hear a differnt version here. Can somebody corraborate on this and throw light on whether this is really the case?

Your groundwork is rather wrong.

CP can not be denied, except for situations of fraud, medical reasons, or lack of paperwork.

For AOS, on the other hand, there can be lots of reason to get a denial.

CP is therefore a pretty sure thing.

The main drawback for CP is that you have to go with the original employer. No AC21, etc.

It also can nowadays take a bit longer than AOS.

And a disclosure: I used CP.

[pontevecchio]

Since you will be here when your dates are current you would file a AOS. It begs the question as to why your GC sponsor is not having the H1 transferred to them. Once the dates are current you will "THEN" file your AOS/AP/EAD by filling in the apporpriate forms and sending them completed to the appropriate address. There are no motions to file. The CP vs AOS is a futile exercise in semantics as far as you are concerned. You need to file AOS when the dates are current.

[Sripad]

Thanks for the replies so far.

1. To answer to the below reply:

The CP vs AOS is a futile exercise in semantics as far as you are concerned. You need to file AOS when the dates are current.

I had my I-140 approved but by then, I was back in Inida. As a result, I filed for I-824 to have the GC process changed from AOS to CP.

Thats the reason why I asked if I have to again file a motion to change from CP to AOS since I am in US now.

2. To JoeF, I would like to ask a few queries:

a. Going by the current trend in US economy, companies out here prefer giving jobs to people who are already citizens or Green card holders as many of them are out of job. Now, a natural question that can arise when one goes for CP is the consular officer asking as to why he should give me an immigrant visa when so many US citizens and GC holders are already without a job in US.

b. During CP, another potential question from the visa officer would be:

Why should an immigrant visa be granted when I am not working for the company which sponsored my GC?

c. There can also be a chance for the visa officer to probe more into the company which sponsored my GC as it is a desi consulting company and as you may be knowing, there is a lot of scrutiny going on for desi consulting companies.

It would be great to get answers to the above queries from anyone who has the experience and knowledge as the replies that you share would really be beneficial to people who are in a similar situation like me.

[rani1876]

Sripad,

You have valid concerns. Although I think 485 is only about background checks. Experts chime in.

Sripad - How long did it take for the I-824 process ?

Thanks

[JoeF]

a. Going by the current trend in US economy, companies out here prefer giving jobs to people who are already citizens or Green card holders as many of them are out of job. Now, a natural question that can arise when one goes for CP is the consular officer asking as to why he should give me an immigrant visa when so many US citizens and GC holders are already without a job in US.

They are not going to ask that. They can ask these kinds of questions for non-immigrant visas.

But not for an immigrant visa. The only thing that matters is that the job exists for you, and that you have a recent notarized offer letter.

b. During CP, another potential question from the visa officer would be:

Why should an immigrant visa be granted when I am not working for the company which sponsored my GC?

Again, they will not ask such questions. You need to have a notarized job offer letter from the original sponsor.

c. There can also be a chance for the visa officer to probe more into the company which sponsored my GC as it is a desi consulting company and as you may be knowing, there is a lot of scrutiny going on for desi consulting companies.

Again, that scrutiny is for non-immigrant visas.

They won't do that kind of stuff for an immigrant visa.

Immigrant visas are a whole different ballgame.

[JoeF]

The CP vs AOS is a futile exercise in semantics as far as you are concerned. You need to file AOS when the dates are current.

Actually, somebody who is in the US in valid status has the option of either doing AOS or CP.

Only if the person is abroad, then there is no choice, because then CP is the only option.

[pontevecchio]

"Actually, somebody who is in the US in valid status has the option of either doing AOS or CP."

In this case since the OP is going to be here when the dates are current he would not need CP when AOS would be a nobrainer.

[JoeF]

"Actually, somebody who is in the US in valid status has the option of either doing AOS or CP."

In this case since the OP is going to be here when the dates are current he would not need CP when AOS would be a nobrainer.

Sure, AOS currently seems to be the better option if the person is in the US. I only objected to your phrase that he "needs" to do AOS. I pointed out that he has a choice, so he doesn't "need" to do AOS.

[Sripad]

To be more specific, by the time when my I-140 was approved, I was in India. So, I had the I-824 process filed to change from AOS to CP. Now, since I am in US, do I have to again file another I-824 to change from CP to AOS? If yes, does the filing needs to be done before my dates become current or can it be done after the dates become current.

I hope it is clear on what the actual issue is.

[JoeF]

To change to AOS, just filing an I-485 is enough. It will take a bit longer, though, since USCIS has to get the file back from the National Visa Center, where they send it for the CP stuff.

[pontevecchio]

1. Wait for dates to be current

2. Then and only Then File AOS

3. Keep a Lawyer onboard fron now till you get the GC.

[Sripad]

Thanks for the replies so far. I just would like to get a more evidence based reply(a recent experience through CP would be ideal) to the following query:

1. When the dates become current and one has to go through CP(which is the option in my case), is the chances of getting the immigrant visa approved as good as through AOS or not. Please take into account the current level of approval/rejections in case of CP vs AOS.

2. Is it true that even in the case of AOS, one has to still appear for an interview and the decision to grant EAD again is at the discretion of the officer? Or in the case of AOS, it is just a matter of going and getting your fingerprints scanned?

Would be helpful if people who have got immigrant visa through CP in very recent times can give a true picture of how the chances of CP option weigh against an AOS.

[JoeF]

Sigh.

There are no CP rejections, except for medical issues, fraud or missing documents. The consular officers do not have discretionary powers for immigrant visas. That's in the Foreign Affairs Manual (FAM). And that hasn't changed. Consular officers do not have discretionary powers as far as immigrant visas are concerned. This is completely different and independent of any H1 stuff.

And AOS is not an immigrant visa. It is Adjustment of Status. A whole different process. With considerable discretionary powers by USCIS officers to deny cases.

If there are no medical issues, no fraud, and if you have all paperwork, CP is a sure thing. It takes a bit longer than AOS nowadays, though.

[Jay]

To change to AOS, just filing an I-485 is enough. It will take a bit longer, though, since USCIS has to get the file back from the National Visa Center, where they send it for the CP stuff.

Joef, Thanks for your answer. I am also in the same boat. I applied for CP. Now I am in the USA..My question is, Should I need to wait till my PD is current ( to file the I-485)? Or Is there any way I can notify the USCIS that I am in the USA and having the intention to file I-485, so that the time taken to get the information from NVC to USCIS will not be wasted

Thanks

Jay

[JoeF]

Joef, Thanks for your answer. I am also in the same boat. I applied for CP. Now I am in the USA..My question is, Should I need to wait till my PD is current ( to file the I-485)? Or Is there any way I can notify the USCIS that I am in the USA and having the intention to file I-485, so that the time taken to get the information from NVC to USCIS will not be wasted

Thanks

Jay

If you want to do AOS, you just file an I-485 when the PD is current.

If you opted for CP on the I-140, the NVC is supposed to contact you shortly before the PD becomes current, basically asking you if you still want to do CP or if you want to do AOS.