Approved I-140 with EB3. Can I file again with EB2 ?

H

hope49

Registered Users (C)
Hi,

My labor was approved with Masters's + 18 months in May, 2006.
In I-140, attorney mentioned EB3 category by mistake. Now, When I got I-140 approval Notice, I came to know that it was filed in EB3.
Can I file for amendment in I-140 Approval or I need to file fresh I-140 ?
Will my priority date will be same ? Please help.
 
My csae is also the same. My employer / attorney make this gross mistake and filed my case in EB3 where as I am BE, MBA and 10+ years of experience.
I was told always that it is filed under EB2. Now I have approved 140 since may 2006. But I am stuck. My proprity date is april 2004. please let me know if you get some good advise from anuone.

Aryan
 
I think EB2/EB3 category is decided at the time of filing labor and not at the time of filing I-140.

This is what I have came to know from my lawyer. Are you guys think it differently?
 
My labour was filed with Masters' + 18 months, so it is EB2. But in I-140 form, attorney checked EB3 category by mistake.
When he got the I-140 approval notice and sent it to me, it was clearly mentioned that approval is for "Skilled Worker or Professional" i.e. EB3.
Pls. suggest wht shall I do ?
 
hope49 said:
My labour was filed with Masters' + 18 months, so it is EB2. But in I-140 form, attorney checked EB3 category by mistake.
When he got the I-140 approval notice and sent it to me, it was clearly mentioned that approval is for "Skilled Worker or Professional" i.e. EB3.
Pls. suggest wht shall I do ?
Click to expand...

Hope49,
My problem is: when I got my LC approved it was approved under EB2 (Bs+6mo or Ms). My LC was filed in 8/2004. According to my lawyer, at that time Bs+6mo or Ms is infact falls on EB2 category. But on 10/2006 uscis start to change to only Bs+5yr or Ms for EB2 category. So, when I file I-140/I-485 concurrently, uscis apply the new rule and suggest to downgrade the category to EB3.
My lawyer suggest me to file an appeal, but at the same time, I will file I-140 under EB3. The appeal basically asking them to consider my case accordingly to the old category, which is Bs+6mo or Ms.

What do you guys think of this? Do you think my lawyer claim is valid?

I try to find anyone who can validate this through this forum but haven't find it so far.
:(
 
??

I thought it was always BS+5yrs = MS. My labor was filed in Oct 2004. Even at that time I was advised that I would need 5yrs of experience (not counting the experience with the current employer) to able to use EB2 category.
 
oh no...is that mean my lawyer lie to me?

mwalam said:
I thought it was always BS+5yrs = MS. My labor was filed in Oct 2004. Even at that time I was advised that I would need 5yrs of experience (not counting the experience with the current employer) to able to use EB2 category.
Click to expand...

Hi, Thank you for your reply.
My lawyer advise me to use Bs+6mo or Ms to go for EB2 or EB3. This was her previous advise to me. Now she claim that the rule has change. She asked me to go ahead filing I-140 EB3 (as suggested by uscis) and then file an appeal for EB2 category.
Is this strange? :(
If anyone can comment here, pls do so. Thanks!!!!
 
joelly said:
Hi, Thank you for your reply.
My lawyer advise me to use Bs+6mo or Ms to go for EB2 or EB3. This was her previous advise to me. Now she claim that the rule has change. She asked me to go ahead filing I-140 EB3 (as suggested by uscis) and then file an appeal for EB2 category.
Is this strange? :(
If anyone can comment here, pls do so. Thanks!!!!
Click to expand...

BS+6mo has never been EB2. Apparently just like my lawyer, yours f'ed up your case too.
 
Lawyer f'ed up my case, what to do?

Chicago Desi said:
BS+6mo has never been EB2. Apparently just like my lawyer, yours f'ed up your case too.
Click to expand...

Desi,
Darn it! I trusted her. I was completely new in this process. I knew nothing of it. This is the price I pay for not getting informed. I didn't even know that this forum exists, until this January.
So, you're saying that there is no change in law and my lawyer just flat lying to me. I already pay her for the cost of appealing my EB2 case and another fee for filing another I-140 for EB3. My lawyer said that we file I-140 EB3 and had that approve and then file an appeal for the EB2 case.
Please anyone, what should I do? Please tell me!!!!! :confused:
 
joelly said:
Desi,
Darn it! I trusted her. I was completely new in this process. I knew nothing of it. This is the price I pay for not getting informed. I didn't even know that this forum exists, until this January.
So, you're saying that there is no change in law and my lawyer just flat lying to me. I already pay her for the cost of appealing my EB2 case and another fee for filing another I-140 for EB3. My lawyer said that we file I-140 EB3 and had that approve and then file an appeal for the EB2 case.
Please anyone, what should I do? Please tell me!!!!! :confused:
Click to expand...

Thats a lotta questions, buddy. I am in the same boat. Lawyers do f-up cases quite regularly and still get paid for their work and there is no reprimand for them. Since I am not an expert, just another victim of similar situation, I'd rather not give you any advise that might not be of any help to you.

Having said that, I can share following information:

-EB3 can not be appealed and converted into EB2 unless there was something as big as mount Everest was wrong.
-You can start another PERM and pursue Eb2 more carefully.
-You can get i140 approval that will become handly should you need to extend your H1 after 6 yrs.


Good luck.
 
I-140 is a follow-on (next step) to Labor certification. In follows the approval of you labor certification.

The EB2 or Eb3 category is decided by what you have stated on the Labor certification form. If your labor is approved based on a Eb3 petition, your I-140 has to be Eb3. As far as I know, you cannot have that changed. The only time you can change is before your labor is approved by filing a modification with DOL. Once labor is already approved, you would need to file a new labor application.
 
I'd like to add some comments here as I am planning to change my case from EB3 to Eb2 if dates do not move fast.
This is very much possible to do ..I mean the changing from EB3 to EB2 and also retain the priority date of the earlier petition.
the issues involved here are that at the time of your PD you should satisfy the criteria for EB2( BS +5) ...also there is an issue of prevailing wage.
the prevailing wage for EB2 and EB3 are different for same job title and experience( but this does not effect people whose salaries have increased into the EB2 category which initially was less while filing in EB3)

the process goes like this ...basically you need to tell the INS that your I140 has been approved earlier while filing the new Labour( yes new labour with new requirements satisfying EB2) and then the new I 140.

My lawyer said he has done that successfully a few in the past.

Read here for more http://murthy.com/news/n_gcimps.html

thanks


mwalam said:
I-140 is a follow-on (next step) to Labor certification. In follows the approval of you labor certification.

The EB2 or Eb3 category is decided by what you have stated on the Labor certification form. If your labor is approved based on a Eb3 petition, your I-140 has to be Eb3. As far as I know, you cannot have that changed. The only time you can change is before your labor is approved by filing a modification with DOL. Once labor is already approved, you would need to file a new labor application.
Click to expand...
 
Welcome me to the club...

My attorney made a very creative mistake - he filed my LC with the job requirement "2-year post-graduate study plus 2 years of working experience". I received a NOID on my I-140. My job ad clearly states my position requires a master's degree - and I have a PhD AND a master's degree. Now as far as USCIS is concerned , none of that matters.

Back to the issue of equivalence. USCIS provided no rule as to how to translate experience into education or vice versa, pertaining to I140 applications. So in the response to USCIS, my attorney cited 8 CFR 214.2(h)(5), which is a rule for H-1B cases. It states that 3 years of specialized training and/or experience are equivalent to 1 year of college education. Now if the rule can be used backwards, my job requirements become BS+8 years.

This is a creative solution to a creative mistake, but whether USCIS likes his sense of humor is another question. I'm still waiting. I'm under premium processing, and today's the 12th day after they received my attorney's argument.

Now, it didn't say how to translate education to experience. So there are three weak links in this arguments: 1) He "logically" reversed the translation; 2) he used an H-1B rule on a I140 case and 3) he assumed that such a translation is acceptable to USCIS. Let's see if he's right.

He also insisted that the job requirements should come from the original offer letter, as opposed the job ads prior to my LC application. Someone please tell me this is wrong. If that's the case, people who re-applied under EB2 after their EB3 I140 approval can't do that - because even if they accumulated enough working experience, their offer letter won't change, and they will NEVER qualify for EB2.
 
Last edited by a moderator:
I-140 got approved for EB2

Chicago Desi said:
Thats a lotta questions, buddy. I am in the same boat. Lawyers do f-up cases quite regularly and still get paid for their work and there is no reprimand for them. Since I am not an expert, just another victim of similar situation, I'd rather not give you any advise that might not be of any help to you.

Having said that, I can share following information:

-EB3 can not be appealed and converted into EB2 unless there was something as big as mount Everest was wrong.
-You can start another PERM and pursue Eb2 more carefully.
-You can get i140 approval that will become handly should you need to extend your H1 after 6 yrs.


Good luck.
Click to expand...


Desi,
Eventhough my job requirement is Master with 0 exp. I still got EB2 for I-140. Now, on to I-485. Thanks God!!!!!
 
joelly said:
Desi,
Eventhough my job requirement is Master with 0 exp. I still got EB2 for I-140. Now, on to I-485. Thanks God!!!!!
Click to expand...

Congratualtions on approval of your i140. You were able to get EB2 b/c the job requirement was MS. But having alternate requirements of BS+6 months often makes it EB3 rather than EB2, AFAIK.

Good luck on your next steps and keep us posted.
 
What is the difference-EB2 or EB3?

Hey ppl,

I am very new to all this-Can anyone please clarify what advantages are there if Labor/I140 is approved under EB2 as against EB3?

-tmlover
 
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