Changing from CP to AOS Now - Pros and Cons
Posted Jun 29, 2007
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In light of the "current" priority dates reflected in the July 2007 Visa Bulletin for most employment-based (EB) categories, we are receiving many questions from those who had selected consular processing (CP) on the I-140 petitions filed by employers on their behalf. The I-140 petition for foreign worker inquires as to whether the case will be processed for adjustment of status (AOS) or CP. The last stage in a "green card" case may be processed through AOS or through CP. When CP is selected, the individual must appear at the U.S. consulate abroad (usually in the person's home country) for an interview following the I-140 petition approval. If all goes well, the family will receive the immigrant visa, and enter the U.S. as permanent residents. There is no need to file AOS. Many of those who selected CP now wish to change to AOS, however, so that they can take advantage of the fact that the dates are current for July 2007. They would be able to file for employment authorization and advance parole for themselves and all eligible members of their immediate families, as well as enjoy certain benefits, like changing employers and continuing with the green card case under AC21 portability.
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Should I Change from CP to AOS?
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At this time, it is a wise decision, in most cases, to change from CP to AOS, as the visa numbers will likely retrogress substantially sometime in the near future. For most people, unless they already have a consular interview set for a date in July 2007, it is unlikely that they will reach the stage of obtaining the immigrant visa before the visa numbers retrogress again.
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Since immigrant visas cannot be issued unless a visa number is available at the time of the visa interview, they will have to wait (potentially for a long time, depending upon category and priority date) until a visa number is available for their category and priority date, once again. They also will have missed the ability to file the I-485, and to receive the related benefits, like an employment authorization document (EAD), advance parole (AP), and the ability to use AC21 AOS portability to change jobs or employers.
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Some people want to stay with the CP option, in the hope that they will get visa numbers before they retrogress again. The likelihood of accomplishing this goal depends upon how far along their cases are in the CP process. But, for many, it will be a mistake to try to grab the uncertain prize at the consulate, while giving up the more certain benefits of AOS.
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This should be discussed with one's attorney, as there may be many variables, depending upon an individual's particular circumstance. There are procedural problems that limit the choice available in some cases. There are some who have no choice but to use CP, if there have been out-of-status issues, etc. There are also some situations in which AOS is the only option.
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Method to Process the Change from CP to AOS
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It is possible to change one's mind about processing the green card case through CP. It is easier to change from CP to AOS than from AOS to CP. In CP cases, upon the approval of the I-140 petition, the USCIS service center sends the original I-140 petition to the National Visa Center (NVC), which then initiates the CP of the case.
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If, prior to the approval of the immigrant visa at the consulate, the person files an I-485 AOS, that will end the CP process. In that event, if the I-140 was already approved, the USCIS requests that the original I-140 be sent back from the NVC to the particular USCIS service center. This usually takes around 120 days. People who request CP, and later change their minds and file AOS, should be aware of this delay in final adjudication of their I-485 applications and plan accordingly. This delay should not impact one's ability to obtain the EAD or the AP within the normal processing time. Also, if the I-140 is pending (not yet approved) then there should not be a delay. Additionally, since visa numbers are most likely going to retrogress once again in the near future, absent a change in the law, this delay may not impact the ultimate processing time for the case, since I-485s can only be approved if there are current visa numbers.