10 months on H1, Should I choose CP or AOS on 140?

[gimme gc]

I am in the process of filing for I140. My PD is Feb 2000. I reach 6-year limit on my H-1 in Aug 2001. I am thinking about specifying CP on my 140 application.
Does the new bill grant an extension beyond 6 years, if I have an approved 140 and am waiting for CP interview? I get conflicting comments at different sites.
In the worst case, I can always wait till July 2001 and switch to AOS by filing 485. Any thoughts? Thanks in advance.

[slp888]

I have the same question to ask. My i-140 for CP is pending right now and my H1B 6 yrs will be expired July next year. I read AILA Q/A on the conditions for the extension. My understanding is that if you are waiting for your PD to be current with your approved I-140, you are fit for the section 104(c) for the extension which is only for AOS. See the copy of the paragraph:

The section 104(c) extension beyond the sixth year for individuals with employment-based immigrant petitions filed but priority dates not current appears to be available only in the context of an adjustment of status.

If the answer is YES. What is the procedure to switch from CP to AOS with pending I-140? What is the procedure to do so after your I-140 approved? Thanks for any input.

[gimme gc]

After some more research, this is what I found out (The ONLY way to be certain is to wait for INS regulations on the new law). If you have an approved I140 and your PD is not current, you can only get an extension provided you are doing AOS (section 104(c)). If your PD is current, you can get extension until you complete your GC process (section 106(a)).

Fortunately for me, I am in India EB2 and my PD should be current shortly (before my I140 is approved/my H1 runs out).

As for as switching to AOS, you can file an amendment while your I140 is pending. Or you can file I485 after I140 is approved.

Read the following excerpt from AILA FAQ.
----
The section 104(c) extension beyond the sixth year for individuals with employment-based immigrant petitions filed but priority dates not current appears to be available only in the context of an adjustment of status.

The section 106(a) provision for extending H-1Bs beyond the sixth year when permanent residence processing has taken too long can be read to apply whether the individual pursues adjustment or consular processing, since one can become eligible for its benefits if the petition has been filed. But there is no assurance that INS and the State Department will read this provision to apply to consular processing cases.
---

[slp888]

Thanks for the info. Do you know what information that I need to provide on the amendment to make this change?

What if your I-140 approved with CP, and your date is not current, but your H1B is near expiring. In this situation, can you apply for extension? According the present interpretation of the Bill, my understanding is not.

[gimme gc]

Re: 10 months on H1, Should I choose CP or AOS on

In your amendment, you have to write that you want "the completed petition to be sent to NVC for overseas immigrant visa processing".

If my PD is not current for CP, I can't get an extension. I am thinking about switching to AOS at that point.

[slp888]

Re: 10 months on H1, Should I choose CP or AOS on

thanks for the message, but your example amendement statement seems to ask for CP. According to new law, we'd like to switch from CP to AOS.

[gimme gc]

Re: 10 months on H1, Should I choose CP or AOS on

My mistake. You should write something like "an application to adjust status to permanent resident will be filed when this petition is approved."

[Xkuger]

10 months on H1, Should I choose CP or AOS on 140?

Thumb rule to Choose CP over AOS. From the point of I140 approval you must have 4 months at least on H1 to have a smooth transission to GC.

The INS takes approx 1 month to transfer case ( Its very subjective depending on service center).

The NVC takes approx 1 month to forward case & P3.

The Consulate takes 2 month to schedule an interview date.

I would say 6 month from point of I140 approval is safe. ANything less that that if you are fine with staying outside the US for some time go for it. Otherwise AOS,EAD is a better option ( Buts its a longer wait -- May get better with new immigration law).