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Can you change to Counselor Processing
- Thread starter BhaiSahab
- Start date
Yes, you can change to consular processing if you have applied for 140/485. It is faster than 485, but there are risks and no benefits like EAD or AP.
Risks:
1) If your petition (consular processing) is denied, you cannot appeal at all.
2) 245i or 245k (245 means out of status in the past or you violated immigration laws) doesn't apply to consular processing. it is only for 485 (within USA).
3) Any lawyer cannot be present to help you when you face consular interviews.
4) AC21 doesn't apply to consular processing.
Consular Processing requirments: you have to get both police records and medical records (forms) in your country (I think).
485 benefits are great because you can use/have EAD to continue working if your H1 expires, AP allows you to travel back and forth, AC21 allows you to switch to another employer while 485 is pending if your 485 is pending for more than 180 days, you can appeal if your 485 is denied or you can refile, you can bring your lawyer to handle your case or bring your lawyer with you for 485 interview if transfer to your local INS, you can extend H1 7th year extension if your 140 or 485 is pending. Statistically, many 485 cases were approved. Only very few cases are denied.
If your case is straightforward, you can use either 485 or consular processing. If your case is not straightfoward, don't use consular processing and don't travel! Use 485 because you can still send RFE or appeal or pay fine by using 245k or 245i.
Hope this helps.
Risks:
1) If your petition (consular processing) is denied, you cannot appeal at all.
2) 245i or 245k (245 means out of status in the past or you violated immigration laws) doesn't apply to consular processing. it is only for 485 (within USA).
3) Any lawyer cannot be present to help you when you face consular interviews.
4) AC21 doesn't apply to consular processing.
Consular Processing requirments: you have to get both police records and medical records (forms) in your country (I think).
485 benefits are great because you can use/have EAD to continue working if your H1 expires, AP allows you to travel back and forth, AC21 allows you to switch to another employer while 485 is pending if your 485 is pending for more than 180 days, you can appeal if your 485 is denied or you can refile, you can bring your lawyer to handle your case or bring your lawyer with you for 485 interview if transfer to your local INS, you can extend H1 7th year extension if your 140 or 485 is pending. Statistically, many 485 cases were approved. Only very few cases are denied.
If your case is straightforward, you can use either 485 or consular processing. If your case is not straightfoward, don't use consular processing and don't travel! Use 485 because you can still send RFE or appeal or pay fine by using 245k or 245i.
Hope this helps.
You need to wait until your 140 is approved and then you have to submit form I 824 to switch from AOS to CP.
The current 824 processing time in May 2003.
So my point is you just gain 6 months if you already apply for 140/485 and then want switch to CP. By the time consulate accept the application and schedule an interview it will be more than one year after 140 approval. If you continue with 485 you will have all the benefits like EAD, AP & AC21.
Also once you apply for 824, INS will automatically cancel your 485 application.
If you yet to apply for 140 then it is different story. It will be fast.
The current 824 processing time in May 2003.
So my point is you just gain 6 months if you already apply for 140/485 and then want switch to CP. By the time consulate accept the application and schedule an interview it will be more than one year after 140 approval. If you continue with 485 you will have all the benefits like EAD, AP & AC21.
Also once you apply for 824, INS will automatically cancel your 485 application.
If you yet to apply for 140 then it is different story. It will be fast.
1204gc said:The current 824 processing time in May 2003.
Some consulates accept "Attorney Certified I-140's", that is, you submit the I-824 then send the receipt notice along with Attorney Certified copy of the approved I-140 (or something like that) and you don't have to wait for the I-824 to be processed.
Not sure off-hand which consulates accept this though.
Also, some consulates are slower than others. The last time I checked, it was taking an average of about 8 months to get an interview in Montreal (after the I-140 is approved). With the USCIS trying to speed up I-485 processing you might not benefit at all from CP at these consulates.
Question: I'm not sure that it makes sense if you have to wait for the I-140 to be approved before you can use I-824 -- what happens if your case is slated to be concurrently processed (i.e. the I-140 and I-485 will be approved at the same time)? Assuming that they allow I-824 to be filed anyway, presumably you'd have to wait until that is processed, then they'd put the I-140 into the non-concurrent pipeline and adjucate that? Note: there doesn't seem to have been a lot of concurrent processing so far but this is supposed to increase in the future...
ETA
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Thanks a lot USGC485,1204gc, ETA-GC !
My I140 is approved and I applied for 485 in May 04. I guess I am OK with 485.
I am sure this question has been asked many times, but let me ask again:
1. Can I change my job after 180 days of 485 pending, I140 approved
I guess YES - but is this 'YES' based on interpretations or is it a sure
shot thing, fully supported by law.
2. Can the job title change a bit (keeping the same job functions though).
3. Can the current employer create any kind of problem.
4. Also do you think USICS will keep up keep the current rate.
Thanks a tons in advance.
My I140 is approved and I applied for 485 in May 04. I guess I am OK with 485.
I am sure this question has been asked many times, but let me ask again:
1. Can I change my job after 180 days of 485 pending, I140 approved
I guess YES - but is this 'YES' based on interpretations or is it a sure
shot thing, fully supported by law.
2. Can the job title change a bit (keeping the same job functions though).
3. Can the current employer create any kind of problem.
4. Also do you think USICS will keep up keep the current rate.
Thanks a tons in advance.
Last edited by a moderator:
Damn It!
A friend sent me this, from murthy.com, an FAQ!
Question 6 : If I change my job, I am afraid my employer will "do something" to end my immigration case. Am I in danger? TOP
Perhaps. While your I-485 is your own application and the employer cannot withdraw it, the entire application rests on the I-140, which is the employer's application. Under previous law, the employer controlled the I-140 throughout the process. Withdrawal of the I-140 meant denial of the I-485. This matter has not been addressed under AC21. While it seems that the employer should lose control of the I-140 after 180 days in order to make AC21 fully effective, this issue needs further clarification. At this point, it appears that if the employer were to withdraw the I-140, the INS possibly could issue a notice to the beneficiary with respect to the processing of the I-485. The beneficiary might then have the opportunity to respond by showing another job offer. INS has not provided specific instructions or regulations as to how this type of situation should be handled in light of AC21.
A friend sent me this, from murthy.com, an FAQ!
Question 6 : If I change my job, I am afraid my employer will "do something" to end my immigration case. Am I in danger? TOP
Perhaps. While your I-485 is your own application and the employer cannot withdraw it, the entire application rests on the I-140, which is the employer's application. Under previous law, the employer controlled the I-140 throughout the process. Withdrawal of the I-140 meant denial of the I-485. This matter has not been addressed under AC21. While it seems that the employer should lose control of the I-140 after 180 days in order to make AC21 fully effective, this issue needs further clarification. At this point, it appears that if the employer were to withdraw the I-140, the INS possibly could issue a notice to the beneficiary with respect to the processing of the I-485. The beneficiary might then have the opportunity to respond by showing another job offer. INS has not provided specific instructions or regulations as to how this type of situation should be handled in light of AC21.
BhaiSahab said:1. Can I change my job after 180 days of 485 pending, I140 approved
I guess YES - but is this 'YES' based on interpretations or os it a sure
shot thing, fully supported by law.
2. Can the job title change a bit (keeping the same job functions though).
3. Can the current employer create any kind of problem.
4. Also do you think USICS will keep up keep the current rate.
1.
As things stand currenlty, you are eligible to use AC-21 once the I-140 is approved, and once your I-485 has been pending for > 180 days (from the time it was filed, not from the time the I-140 was approved). I'm not aware of anyone who is advising people *not* to use AC-21 in this situation -- it's generally accepted that this is "safe" as long as the new job matches the one for which the GC is being done.
That said, if you don't have a compelling reason to change jobs, you are probably better off to stay put as switching jobs could delay your case by generating RFE's and putting you in the position of having to prove that the new job matches the original one.
There was news recently about possibly dropping the requirement that the I-140 be approved for AC-21 to apply. I haven't heard anything official about this yet though. Some people have used AC-21 even though the I-140 wasn't approved when they switched but without a USCIS bulletin to say this is ok, I wouldn't chance it.
2.
This is where it gets tricky. As far as I know the important thing is the actual job category (e.g. software engineer) and the actual duties performed. The salary probably shouldn't change too much although depending on where the old / new jobs are located it might be easy to justify even a 20-50% change. I don't know how much detail they go into (e.g. if you were doing Java development for web-based software and now you are programming in C++ for a game company -- are those jobs similar enough?).
There's a link somewhere to the actual description of how AC-21 works -- maybe someone could post it.
3.
If the I-140 is approved, the employer can withdraw it but you will have a chance to respond to the NOID (Notice of Intent to Deny) with your AC-21 information (assuming you qualify). If you think there is a strong chance that the old employer will withdraw the I-140 you might want to "preempt" this by sending your AC-21 information in even before this happens. Some prefer to wait and see if any problem comes up though as filing AC-21 might increase the chances of an RFE (which would slow things down) and there's a good chance the approval might have gone through otherwise.
If your I-140 isn't approved and your employer withdraws it you're out of luck.
4.
Very hard to predict. They seem to be going after some "low hanging fruit" currently, approving some applications with NDs as late as Aug/Sep 2003 or even Oct/Nov 2003 or later but there are still many people with an ND of Sep 2002 or earlier who haven't been processed yet. My own ND is 10/23/03 and I expect to be processed in 1 month if I'm very lucky (e.g. if my case is considered to be "easy") and in 12+ months otherwise...
My gut feeling is that they will do their best to avoid getting into the 2-3 year backlogs again but this could be affected by any number of things.
ETA