BoxHat

I am an Indian citizen, my wife is an Australian citizen, but born in Philippines. I
started my Green Card process, Jan 1999 through RIR in EB-3. I-485 for adjustment of
status was submitted on August 2000, with a receipt date of Sept 2000. As the Indian quota
was not current at that time, my app was "cross-filed" under the Philippines quota. I have
had the fingerprints done on Dec 2000. At this stage is it possible to change my
employers, if so what are the caveats and the due process? Also, is it possible to make
this case a consular processing case in order to speed-up the approval even though it was
cross-filed?

Appreciate any responses.

Sylvia Ottemoeller

BoxHat wrote:

> I am an Indian citizen, my wife is an Australian citizen, but born in Philippines. I
> started my Green Card process, Jan 1999 through RIR in EB-3. I-485 for adjustment of
> status was submitted on August 2000, with a receipt date of Sept 2000. As the Indian
> quota was not current at that time, my app was "cross-filed" under the Philippines
> quota. I have had the fingerprints done on Dec 2000. At this stage is it possible to
> change my employers, if so what are the caveats and the due process?

You may be able to use the portability provisions of AC21. See
http://shusterman.com/s2045txt.html, http://shusterman.com/h1bfaqins.html, others. Look at
section 106(c). However, you would not be wise to do it yet.

> Also, is it possible to make this case a consular processing case in order to speed-up
> the approval even though it was cross-filed?

The cross filing does not prevent a change to consular processing. Cross filing can be
done in consular immigrant visa processing as well as in adjustment applications.

However, if you initiate a change to consular processing, you cannot take advantage of
portability. Portability of this sort applies only to AOS.

If you want consular processing with a new employer, your new employer would have to
obtain new H-1B status for you, a new labor cert, and new I-140 which requests consular
processing. You could retrieve the *priority date* of the previous I-140, if the previous
employer does not revoke the petition.

BoxHat

Thank you for the response. If I understand you correctly, you are saying that if I do not
change companies, I could opt for Counselor Processing in India with my current
application.

Also, after March 2001 (that would be 180 days from Sep 2000 which was the receipt date
for my I-485) I could change employers, but I cannot opt for counselor processing with the
present application. If I do change employers though, would my processing for I-485 be
started from all over again, or would it basically just take off from where it left of? I
am presuming I do not have to get a new Labour cert and a new I-140. So to change
employers, I have to ensure that -- I have a new H1-B with the new emploter -- The job
description is similar Are there any other pre-requisistes? You did mention that "it would
not be wise to do" so yet. Are there any caveats? Are there a lot of cases which have
taken advantage of this new law?

Thanks

> BoxHat wrote:
>
> > I am an Indian citizen, my wife is an Australian citizen, but born in Philippines. I
> > started my Green Card process, Jan 1999 through RIR in
EB-3.
> > I-485 for adjustment of status was submitted on August 2000, with a
receipt
> > date of Sept 2000. As the Indian quota was not current at that time, my
app
> > was "cross-filed" under the Philippines quota. I have had the
fingerprints
> > done on Dec 2000. At this stage is it possible to change my employers, if so what are
> > the caveats and the due process?
>
> You may be able to use the portability provisions of AC21. See
> http://shusterman.com/s2045txt.html, http://shusterman.com/h1bfaqins.html, others. Look
> at section 106(c). However, you would not be wise to do it yet.
>
> > Also, is it possible to make this case a consular processing case in
order
> > to speed-up the approval even though it was cross-filed?
>
> The cross filing does not prevent a change to consular processing. Cross filing can be
> done in consular immigrant visa processing as well as in adjustment applications.
>
> However, if you initiate a change to consular processing, you cannot take advantage of
> portability. Portability of this sort applies only to AOS.
>
> If you want consular processing with a new employer, your new employer would have to
> obtain new H-1B status for you, a new labor cert, and new I-140 which requests consular
> processing. You could retrieve the *priority date* of the previous I-140, if the
> previous employer does not revoke the petition.

Sylvia Ottemoeller

BoxHat wrote:

> Thank you for the response. If I understand you correctly, you are saying that if I do
> not change companies, I could opt for Counselor Processing in India with my current
> application.

Yes, but what I did not say was that consular processing would probably take a long time,
perhaps 12 to 18 months from your decision to change paths, because you *started* on the
path of AOS. If you had started on the path of consular processing, you might be a
permanent resident right now.

> Also, after March 2001 (that would be 180 days from Sep 2000 which was the receipt
> date for my I-485) I could change employers, but I cannot opt for counselor processing
> with the present application. If I do change employers though, would my processing for
> I-485 be started from all over again, or would it basically just take off from where
> it left of?

Read the websites that I mentioned, please.

I am presuming I do not have to get a new Labour cert and a new I-140.
> So to change employers, I have to ensure that -- I have a new H1-B with the new emploter
> -- The job description is similar Are there any other pre-requisistes?

Nobody knows yet what *will be* the pre-requisites. Nobody knows what "similar" will
mean to INS.

> You did mention that "it would not be wise to do" so yet. Are there any caveats? Are
> there a lot of cases which have taken advantage of this new law?

Nobody I know has taken advantage of it, because INS has not issued regulations.

> > BoxHat wrote:
> >
> > > I am an Indian citizen, my wife is an Australian citizen, but born in Philippines. I
> > > started my Green Card process, Jan 1999 through RIR in EB-3. I-485 for adjustment of
> > > status was submitted on August 2000, with a receipt date of Sept 2000. As the Indian
> > > quota was not current at that time, my app was "cross-filed" under the Philippines
> > > quota. I have had the fingerprints done on Dec 2000. At this stage is it possible to
> > > change my employers, if so what are the caveats and the due process?
> >
> > You may be able to use the portability provisions of AC21. See
> > http://shusterman.com/s2045txt.html, http://shusterman.com/h1bfaqins.html, others.
> > Look at section 106(c). However, you would not be wise to do it yet.
> >
> > > Also, is it possible to make this case a consular processing case in order to
> > > speed-up the approval even though it was cross-filed?
> >
> > The cross filing does not prevent a change to consular processing. Cross filing can be
> > done in consular immigrant visa processing as well as in adjustment applications.
> >
> > However, if you initiate a change to consular processing, you cannot take advantage of
> > portability. Portability of this sort applies only to AOS.
> >
> > If you want consular processing with a new employer, your new employer would have to
> > obtain new H-1B status for you, a new labor cert, and new I-140 which requests
> > consular processing. You could retrieve the *priority date* of the previous I-140, if
> > the previous employer does not revoke the petition.