CP or not to CP

V

vick4394

New Member
Hi,

I am currently filing for my I 140 and wanted to know whether to go for CP or Change of Status. I have been in the US since 1996 on a F1 visa then on an H1-B and have always been in status everything by the book. But my wife of 2 years was out of status after her F1 Opt expired for 8 months and then got another F1 and is now on an H4.

So what are the issues associated with my case at any level.

Thanks again.

Vick
 
To start, the reasons for CP rejection are the same reasons for AOS rejection. SO there is no significant difference!

Needless to say research more but at a high level DO CP if:
1. Youve (and other applicants) been been in status throughout your stay in usa. And there is no criminal/ illegal/ unlawful / fraudulent past.
2. There is no contagious medical condition (like hiv/ syphilis/ std...).
3. Your job is 100% secured for the time of I-140 and until CP interview atleast.
 
CP

I have always been in status no criminal/ illegal/ unlawful / fraudulent past. But my spouse has been out of status between 2 F1's for abt 8 months.

Is that cause for a concern ?

Vick
 
Normally anything more than 180 days of out-of-status means a red flag.

I would advice consult a attorney!
 
"Normally anything more than 180 days of out-of-status means a red flag. "

divekar,

in this case, since the wife is the dependent, and the principal applicant has maintained status throughout, is it possible that this out-of-status of the wife will be overlooked during CP?
especially, since both have no criminal records or anything like that.

does it depend at the discretion of the consular officer?if he takes this matter seriously, would he grant GC to the principal and deny to the dependent?
 
GCChaahiye, vik4394:

1. in this case, since the wife is the dependent, and the principal applicant has maintained status throughout, is it possible that this out-of-status of the wife will be overlooked during CP?
Answer: The difficulty about CP is that decisions happen in the home country and decisions are made by the Consular officer. Let me say nothing is impossible! Out-of-status could (not will) be overlooked. Again it is recommended that when one (primary/ deriavtice applicant) is out-of-status to follow AOS process just bcoz if somethign goes wrong at the consulate there is nothing much an attorney can do from usa. Whereas when the out-of-status quesiton arises in an AOS case your attorney can explain and fight the case for the applicant!

If you want to proceed with CP I strongly suggest consulate not one but atleast 2 attorneys just to get a point of view and to understand different possibilities.

Please note that out-of-status question > 180 days will more than likely arise irrespective of AOS or CP ...the only difference is that for CP you may have to convince consular officer and in AOS your attorneys will do it for you.


2. does it depend at the discretion of the consular officer?if he takes this matter seriously, would he grant GC to the principal and deny to the dependent?
Answer: Yes it depends on a number of factors ...major being the consular officer! But remember if in CP if CO rejects the case you may be able to appeal for a supervisor to review but that would mean additional time (1 month) in home country and a lot of stress. No sure if the CO would grant GC to primary and not to derivative. I thik he would but not sure.

Note: When you talk to the attorney you can try this option which will be ideal for you. CP for primary and 485 for derivative! I think this is possible and will be a better fit than CP for both applicants! All the best and again a word of caution you have come so far consult a good attorney such as Rajiv Khanna or any other good attorney and spend some more money in his consultation (even if it means out of your own pocket ) and it will be an investment you will remember for life time. This is just a friendly advice!
 
Hi divekar,
You mentioned CP for primary applicant and 485 for dependents? Is it really possible? How can we do this? Do I have to wait to get 140 approval for applying dependents' 485? If this can be done, this would be cool, as dependent can get EAD and you get GC faster with CP.

Do you have a link for more information.
Thanks,
Desi145
 
I think this can be done (based on an articel I had read 2-3 months back on this forum itself) hence i suggested. Exactly how it can be done is a question for the attorney you go with.

The rule is that derivative applicant cannot get GC before primary. Hence I suggested CP for primary and then 485 for secondary.
 
"Hence I suggested CP for primary and then 485 for secondary."

Sounds good.

However, got a question:

When the GC of the primary gets approved at CP, then I believe,the CO cancels NIV visa of the applicant.In this case, how can the derivative maintain his status(and continue to pursue AOS) while the base visa has been cancelled?


Would not the derivative visa like H4 be automatically void when the primary's H1 has been cancelled?
 
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Excellent point GCChaahiye! Although I recommended the approach, I was thinking of the same and hence recommended consulting an attorney before making decisions.

I may be totally wrong on this but here are my two cents:
My thinking was that primary applicant applies for CP and simultaneously derivative applies for AOS. It takes about 6 months to get CP interview and in the same time the derivative can apply for EAD and be off visa limits. And thus even cancellation of primary applicants visa due to GC approval should not harm the derivative applciant as derivative is on EAD before primary's CP approval.

Again I am qualifying my statement that this is truly my thinking which may totally be on the wrong track but worth discussing with an attorney and seenig if it is possible!
 
This is a very good suggestion, Divekar. If this works, it would be ideal situation for me. As spouse gets EAD and you can arrange your interview at your convenience and get CP done in a reasonable time-frame.
I will send an email to my attorney and ask whether this is feasible.

Divekar, do you remember the link for that article you read months back ?

Thanks,
Desi145
 
to divekar,GCChahiye

Hi divekar,GCchahiye,

I have one more follow-up, not sure whether you have any suggestions on this?
I am already on 7th year, and just applied for I140. Planning to go for CP.
I talked with my attorney and was told that If I don't get the CP interview by the expiry of my 7th year, I can get 8th year extension? Is it true?

Do you know anyone in similar situation?

Thanks,
Desi145
 
desi,

sorry, but I am not familiar with extensions, hence, I am unable to say anything in this matter.

divekar,

your strategy sounds good, as usual!

perhaps you should raise the level of your " two cents" to "two dollars":D

Well, here is one more for you:

Let us assume that H1 opts for CP and H4 files for AOS and gets EAD. H1 gets the GC at CP.However, after 1.5/2 years, or whatever the time delay is, the AOS of H4 gets denied because of his being out-of-status "once upon a time".

Now what? Would the H4 have to go back and file under family based and wait for another 10 years separated from the primary?

Moreover, EAD is issued for one year at a time. Doesnt the applicant need to be in some status at the time the EAD is renewed?

Another thing,once H1 gets the GC, would it put a moral responsibility on the BCIS to overlook whatever lapses happened (ofcourse just being out of status and nothing criminal or anything disastrous like that) and approve the AOS of H4?
(I know, there is no place for morals in these issues! :( )

One more point:

What if the CO denies the GC to the Primary during CP?Once this happens, the underlying I-140 becomes void, resulting in the voidance of all the pending applications based on this I-140.In this case, the H4 loses his even his EAD status and has to reapply for H4 immediately,provided there is still time for the expiry of the H1.And the whole effort comes to square zero and start allover again if still breathing!
Am I right?
 
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desi bhai:

AS GCCHahiye I too am not well verse in the extension arena. But I have the impression that it is possible since your LC is approved and I-140 is pending. Send a private message to "kkulkar" (kedar) and he should be able to point you in the right direction.

GCCHahiye:

I wish your words were true that my " two cents" are worth "two dollars"..then life would be different! Anyway...its always nice to know that there is someone else who thinks that way!

Boss this is the best GOOGLY question I have seen! (I am going to say TIME PELASE). Your question are very apt and one of the few possibilities that will need to be discussed with attorneys. One thing is for sure which is if primary applicants CP is rejected then derivative applicants pending AOS by default gets rejected (no questions asked). Then it is a full stop and a dead end.

IF primary applicant gets CP, but derivative applicant gets hosed on AOS then that is an excellent question for the attorney.

Desi bhai please make a note of this question so that you ask...I am sure his situation will not arise but I am a person who follows the motto of "BETTER SAFE THAN SORRY"...so do ask your attorneys!
 
Thanks Divekar and GCChahiye for your opinions. I will ask that question to my attorney when I talk about CP/485 combine option. I will update the forum if I hear anything.

Have fun,
desi145
 
To all those interested in exploring option of CP for primary and AOS for derivative applicant here is the article I was writing about which shows it is very possible:

http://www.murthy.com/UDaosfam.html

It is published on murthy.com. the only rule is that primary should get GC first and only then can derivative can get her / his GC which does not seem to be a problem since if primary does CP he/ she will get in about 6-8 months and derivative doing AOS will definitely take 2+ years but will be able to avail of the EAD benefits.
 
divekar,

This article is very informative.

When the primary gets the GC during CP, his NIV is cancelled. This article means that the derivative can still continue to pursue AOS.

However, a petitioner has to be in some status when AOS is approved/disapproved. Am I right?

In this case, would the approval of I-140( on which AOS is based) be considerd to be "in status"??
 
However, a petitioner has to be in some status when AOS is approved/disapproved. Am I right?
Answer: Yes primary and derivative petitioner needs to b in status. Primary applicant will be on permanent residency status and derivative on AOS pending status.

In this case, would the approval of I-140( on which AOS is based) be considerd to be "in status"??
Answer: Not sure if I understand your question correctly! Could you rephrase this question!
 
Hi Divekar,
Thanks for the link.
Now one more question, this article doesn't say when the dependants can file 485. Even if both file CP for primary and 485 together, that's fine. As long as CP gets done before 485. Is my understanding correct??
 
When filing 140, it would be mentioned that H1 will go for CP and the H4 will opt for AOS.

I-140 gets approved and H1 goes to India for CP, while, in the US, AOS for the H4 is pending.

When the H1 gets GC approved during CP, his NIV will be cancelled in India. He loses his NIV and becomes a PR.

When the primary's H1 gets cancelled, the derivative loses his H4 status. At this point, he has no status in the US except for the approved I-140 on the basis of which his AOS is pending.

So, my question is :

At the point of AOS approval/denial, what is the status of the derivative?

Does my question make any sense?If not, let me know and I will delete it.:D
 
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