Please help: Consular Processing or AOS (Family based Green Card)

C

ccshah

New Member
Hello all,

My wife is a permanent resident in US and she filed a green-card petition for me (I-130) back in 2004. I later came to United States on an H1-B visa. She has also applied for her citizenship but God knows when that will happen. It's stuck in FBI name-check. So, I do not want to take any chances there. Our country of citizenship is India.

What would be best in my case: consular processing or adjustment of status? Please consider the following facts:
- Family Based Green Card Petition (F-2A)
- Already in US on an H1-B
- Country of Citizenship: India

I have tried researching this but most sites I found talked about the differences between CP and AOS as related to an employment based petition or for people who are not already in US.

1. What would be the best way to make sure that I get a work-permit to work anywhere I want? I don't mind going to India for CP. Also, getting a work-permit is my primary concern. I need to change employers and H1-B is hampering my ability. I already got turned down on a great job offer because they didn't want to sponsor my H1-B. Also, the quota limit on H-1 is not helping. Of course Green-card is very important too but if I can get a work permit first, it would be very helpful.
2. If I opt for CP, I am assuming I can stay and work in US based on my H1 until I am called for an interview. Once the interview date is set, how long do I have to stay in India? Do I get a temporary green-card and my status changes once the interview is over? Would that allow me to change employers and work in US? Or do I have to wait for the actual green-card?
3. If I go for AOS, is it true that I can work anywhere if the AOS is pending for more then 6 months? Or is this only true for Employment based green-cards? How long does an AOS typically take? If I do an AOS, am I at least granted a temporary work-permit?

Thank you all for your help. It's highly appreciated.
- CC
 
A1: Once she becomes a US citizen, then file your AOS. You will then be able to get an EAD.
A2: You can continue to work in the US on your H-1B until your CP interview takes place. If issued a visa you will re-enter the US as a permanent resident and thus be able to take up any employment.
A3: If you go via the AOS route, you can change employers as soon as you get your EAD.
 
Hi TC,

Thank you very much for your response.

1. Since her process is stuck in the FBI name-check, I don't think it's prudent enough to wait for that to happen. I have heard horror stories from people.

2. Will my CP interview take place when my priority date becomes current? So, that's when I go to India, give interview and get my green-card? Does that all happen on the same day?

3. If I go the AOS route, how long does it take to get the EAD? I am aware that I can file for AOS as soon as my PD becomes current. With the AOS, I can also file for my EAD. But how long does that take?

4. I am confused about what route is more preferable.

Thanks.
 
A1: More likely than not, she will become a citizen before your I-130 (based on F2A) becoems current. So her becoming a citizen is probably the starting line.
A2: I would speculate 6-8 months from the time it becomes current.
A3: EADs average 90 days if submitted along with the I-485.
A4: That is your call.
 
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