Changing to AOS from CP

[therobsons 0]

Hi everyone,

I'm hoping to get some advice on what to do with a bit of a difficult situation. Here's what's happening:

I am Canadian, my wife is a USC. We met while we were both students in the US. 6 months after meeting, she left the US for Peace Corps service in Senegal, and I traveled to Senegal as well to work as a teacher. We got married in Senegal, and applied for a green card through Consular Processing. We both returned from Senegal in June, however our case was still stuck at the NVC stage. Since our return, I have been applying to teaching jobs in the US, hoping that the NVC would finish our case and schedule an interview before the end of August when all teaching jobs start. At the time, we were both in Canada staying with my parents.

Towards the end of June, we drove down to the US to meet up with some friends, attend a wedding, and see my wife's family in Southern California. I entered on a tourist visa (Visa Waiver Program) as obviously I was intending to return to Canada for my visa appointment, whenever it was scheduled. A week or so into our trip however, we got a checklist on our NVC application, meaning it would be delayed further. I was also called for an interview with a school in Wyoming, and offered a job there. We just received our case complete notice today from the NVC, however there is virtually no chance that the interview will be scheduled in time for me to start the job I was offered (starts August 22nd and I might have another job offer starting August 28th, but still too soon). We are still in the US right now.

So I started thinking about other possible options. If I were to stay in the US and file for Adjustment of Status, I could file concurrently for an EAD, and based on my job offer, request an expedite for the EAD. If this was granted, it could arrive in time for me to start my job on August 22nd. Since I am a teacher, if I don't start work before the school year begins in September, I would have to wait until next August to start full-time work, which given that my wife is returning to school to complete her Master's degree, would be difficult financially.

I know that under normal circumstances filing for AOS from a tourist visa can be tricky. My wife and I were already married, so I certainly had intent to immigrate eventually, but when I entered the US in June, I did not have intent - I was going to return to Canada for my interview. Anyways, I was admitted under inspection, was completely truthful about the existence of my pending CR-1 petition and my plans, and thus satisfied the immigration agent that I did not have intent to immigrate. I should be OK to file for AOS based on my situation, correct?

Of course, all of this hinges on getting an EAD before my job starts. If I apply for AOS, and an EAD expedite, and lets say that it is not granted, or for some other reason it doesn't arrive before my job starts, would I still be able to return to Canada and complete my CR-1 process? I know that from this point AOS will take longer to get the actual green card, and I won't be able to leave the US until I get Advance Parole, but right now, getting work authorization as soon as possible is my priority - I don't want to have to wait another year for full-time teaching positions to open up. If that means delaying my green card I am OK with that, but I don't want to apply for AOS/EAD, have it not arrive in time, and also have that "cancel" my CR-1 petition, requiring me to start that process all over again. Help!

[EM_Vandaveer 2,417]

It's OK for you to apply for AOS. As far as expediting your EAD, you need a job offer letter.

I'm not 100% sure if your Consular process is automatically cancelled when you apply for AOS.

Leaving the country after filing AOS, but before receiving AP cancels the AOS process for sure.

Hopefully someone more knowledgeable will chime in soon.

To be honest, you are right that getting the GC will take longer at this point via AOS, but you'll have EAD/AP within 90 days even if the expedite is not granted. At that point you can travel and work so it's not hard to just wait for the interview & GC.

Edited July 19, 2016 by EM_Vandaveer

[therobsons 0]

I'm not 100% sure if your Consular process is automatically cancelled when you apply for AOS.

It's this part that I'm most curious about - my consular processing application is just waiting for the interview, so I'm just a step away from the green card there. The problem is that that step won't happen in time to let me start my job. The expedited EAD is the only chance I have to be work authorized in time, but if that isn't granted, then I would prefer to go back to the consular processing and get the green card.