Adjustment of status vs Counsular --please advice

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cybird

Registered Users (C)
Hello...hope you can help with some advice...

We just got our labor certification approval and are trying to decide between counsular and Adjustment fo status before applying for the I140.

The GC is being processed by my husband and his H1 B 6 years limit expires in Nov 2003.

Given this situation do you have any suggestions?
His application is EB3 RIR; Vermont Center.

Any advice will be greatly appreciated. Thank you
 
Originally posted by cybird
Hello...hope you can help with some advice...

We just got our labor certification approval and are trying to decide between counsular and Adjustment fo status before applying for the I140.

The GC is being processed by my husband and his H1 B 6 years limit expires in Nov 2003.

Given this situation do you have any suggestions?
His application is EB3 RIR; Vermont Center.

Any advice will be greatly appreciated. Thank you
Click to expand...

It is completely your personal decision. You can consider the following while making the decision:
- CP takes predictable time. It is about 4-6 months after 140 AD depending on your service center and consulate. AD to CP interview date for me is less than 5 month span. You can go to cptracker.com to analyze CP time.
- Contrary to widespread notion, CP does not carry any additional risk of rejection. You can refer to immihelp.com to look at circumstances when CP can be rejected. If your CP gets rejected, you AOS will also get rejected (albeit little later because that process takes a longer). As per various immi sites, the consular officer does NOT have discretionary power to reject/approve CP.

CP will get rejected if:
- Your case is a fraud
- You do not carry all the required papers (they will call you again with proper documents)
- You flunk medical
- You have been out of status for more than 6 months

Additional risks for CP:
- Political situation in your home country (people fear what if consulate closes down for some time)
- You lose you job before CP interview - there is probably little more wiggle room with AOS because of AC21.

Only negative I see:
- You have to travel at a relatively short notice and possibly at an inconvenient time. I am not able to go for more than a week because of work committments around CP interview date.
 
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Thank you for your reply. I am just a little worried due to the lack of time on my husbands H1B. You need to be in status at the time of the CP interview.

Does it happen that the delay between the Ii140 approval and the CP interview is more than 9 months?

Thanks
 
Originally posted by cybird
I am just a little worried due to the lack of time on my husbands H1B. You need to be in status at the time of the CP interview.

Does it happen that the delay between the Ii140 approval and the CP interview is more than 9 months?
Click to expand...

You need to never have been in unlawufl status for > 6 months. If so the 3/10 yr bar applies. In that case, AOS (with 245(i)) is the only way out...

In your case your PD is well prior to the 1 yr requirement (filed before Nov 2002) and also have a 140 on file. You qualify for 7th yr H1 extension. In any case, if everything goes well, you should be able to complete your CP well before then..

Sometimes the delay is more than 9 months if the INS loses your file while sending to the NVC or if you make mistakes in the P3 and the NVC returns it to you or if you make silly mistakes (send P3 to wrong address - dont laugh, it happens) or if you sit twiddling your thumbs without acting.
 
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As Moulin said, you will qualify for 1 year extension in any case. You dont have to worry about H1 expiring. You might want to play a tad safe and apply for the extension earlier on, instead of waiting till the last moment.

In any case, you can always ask for CP right now and change over to AOS after 140, if the situation so demands. There is no time loss if you want to do that.
 
Counsular - Thanks

We are going ahead with counsular processing. Thank you for your help and advice. See you in the I-140 forum.
 
out of status?

kashur- where did you see the clause which says that cp will be rejected if you are out of status for more than 6 months.

I have got interview at new delhi consulate in september.

i sent my ac140 application which kind of implies that i was out of status for 5 months.

basically, i quit my last emplyer in mid of september 1999 and applied for a new h1 which was received on October 1.

so in effect for 20 days my application for new visa had not reached the INS and i was out of a job.

the previou visa was valid till Feb 02.

i got my new visa approved on 01/24/2000 valid till 10/05/2002

however the lawyers put on my resume that i was "looking for a job" from 10/1999 to 03/2000 a period of 5 months.

is this a major issue?
 
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