EB2 I-140 denied and refiling

H

Hpuser

Registered Users (C)
Hi Guys,

Want to share my experience and see if anyone has similar exp. Last yr my I-140 got denied in EB2 from NSC and USCIS said job offer doesnt qualify for EB2 category. I have MS from US university.My attorney refiled under EB3 using same labor and it got approved this september. I have other attorney and he said NSC has changed interpretation for EB2 requirement and suggested to refile the I-140 in EB2 again using same labor.seeing the priority dates, I guess its worth refiling.

Want to see if anyone has any knowledge/experience.Appreciate it.

THanks
 
can you please share your job profile etc that your lawyer thought was good enough for EB2 the very first time.....
 
For hpuser

I agree that NSC has a new set of EB2 requirements. Below is the excerpt from the immigration law website:
06/01/2007: NSC's General Guidelines for EB-2 Educational Requirements and EB-3 Education Requirements [Retracted]

  • [Post Script 06/07/2007: The AILA NSC Liaison Committee released a clarification that (1) the involved liaison issue is related only, repeat only to the EB-2 and Master's degree question and any statement in this posting on "Bachelor's degree equivalent" issues relating to the 3-year degree is not necessarily acceptable as the NSC appears to continuously require a U.S. bachelor's degree or single sources of foreign equivalent degree, not foreign equivalent education; (2) there is "no fixed rule" the NSC has adopted on these issues; and (3) NSC has not reversed its prior position on requiring single sources degrees for bachelor's degree equivalency.]
  • According to the AILA-NSC Liaison minutes of 04/12/2007, the following standards generally applies in determining EB-2 requirement:
      1. U.S. master’s degree – as long as it is in the field required no additional documents would be required
      2. 4 yr bachelor’s degree + 2 yr master’s degree (India) – with degrees in the same or related fields this will generally be considered the equivalent to a U.S. master’s degree with no additional documents required
      3. 3 yr bachelor’s degree + 3 yr master’s degree (India) – with degrees in the same or related fields this will generally be equivalent to a U.S. master’s degree with no additional documents required
      4. 3 yr bachelor’s degree + 1 yr postgraduate diploma + 2 yr master’s degree (India) with degrees in the same or similar field : generally be considered the equivalent of a bachelor’s degree plus one additional year of education so the beneficiary would also need to have 5 yrs progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the 3 yr bachelor’s degree it is possible that this would be considered the equivalent to a U.S. Master’s degree and there would be no need to establish 5 yrs progressive experience.
      5. 3 yr bachelor’s degree + 2 yr master’s degree (India) – Generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category: However, foreign credential evaluation using the following additional evidence could make it to EB-2, Master's degree equivalent:
        • Examples of comparable U.S. master’s degree programs requiring only one year to complete (indicating that a total of 5 years of undergraduate and graduate level education is sufficient); or
        • Credential evaluations that provide a detailed comparison of credit hours completed by the beneficiary for the 3 year bachelor’s degree program with credit hours required by comparable U.S. bachelor’s degree programs.
      6. 3 yr bachelor’s degree + 2 yr master’s degree (India) + 5 yrs progressive, post-master’s degree experience – Generally the educational degrees would be determined to be the equivalent of a U.S. bachelor’s + 1 year and the beneficiary would meet the statutory requirement
      7. 3 yr bachelor’s degree + 2 yr master’s degree + 1 yr postgraduate diploma (India) – Generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the 3 yr bachelor’s degree or the 2yr master’s degree it is possible that this would be considered the equivalent to a U.S. Master’s degree and there would be no need to establish 5 yrs progressive experience
      8. If a master’s degree is required and the beneficiary does not have a U.S. master’s degree in the specified field of study the petitioner should be prepared to submit sufficient documentation to establish that the education that the beneficiary possesses is the equivalent to a U.S. master’s degree in the required field.
    • [Matthew Oh Note: The positions of the NSC for the situations in (4), (5), (6), and (7) appear to have loosen up substantially and very flexible and accomodative. Very good news. We thank the NSC leaders for the new policy on these issues.]
  • Education Requirement in Labor Certification Not Restricted to U.S. Bachelor or Foreign Equivalent Degree: Following will be acceptable for "Skilled Worker" catogory of EB-3:
      1. Will accept a combination of degrees or diplomas;
      2. Will accept 3 or 4 yr degrees;
      3. Will accept education evaluation prepared by a qualified credential evaluation service;
      4. Will accept educational equivalency evaluation prepared by qualified evaluation service or in accordance with 8 CFR § 214.2(h)(4)(iii)(D);
      5. Will accept a bachelor’s equivalent based on a combination of education as determined by a professional evaluation service;
      6. One year of experience in the job offered will substitute for one year of education toward a bachelor’s degree;
      7. Will accept single degree or any combination of degrees, diplomas or professional credentials determined to be equivalent by a qualified evaluation service.
    • Since there is no difference between the Professional EB-3 and the Skilled Worker EB-3 for the purpose of the immigrant visa numbers in the Visa Bulletin, sometimes it can be very important that the labor certification is drafted such a way that if the alien cannot meet the Professional EB-3, the alien has a backup of Skilled Worker EB-3 so that EB-3 I-140 petition is not denied.
    • [Matthew Oh Note: Again, the NSC has loosen up somewhat on this issue, accomodating a part of Grace Korean Methodist Church decision on this Skilled Worker issue, which the NSC one time applied very narrow reading of the langugae in the labor certfication application and denied I-140 petition unless the skilled worker option was met and requested by the petition. We want to reiterate our "thanks" to the NSC leaders for taking a reasonable interpretation of the regulations.]
Click to expand...

Please note that, the job description (on the LC) should qualify for the EB2 criteria.
 
Last edited by a moderator:
Hi manwithnoname,

just concerned if I refile I-140 EB2 using same labor, will it affect my approved I-140 EB3. I dont want to get into that mess.
 
hi,
did you file your I-485? I'm in the same boat. I also have masters from USA and USCIS denied my I-140 filed in EB2 category. Why didnt you file for a MTR (motion to reopen) for I-140? My compnay attorney is also planning to refile a new I-140 in EB3 category. I had filed my I-485 and I received EAD and AP. do you know if they would be invalid? or can we link the new I-140 with pending I-485??

Anyone has experience in this one?

Really appreciate your response...

Thanks...
 
Hpuser said:
Hi manwithnoname,

just concerned if I refile I-140 EB2 using same labor, will it affect my approved I-140 EB3. I dont want to get into that mess.
Click to expand...

let me understand ... your employer's job offer does not satisfy the EB2 requirements ... so it is immeterial whether you qualify for EB2 or not. I would stick to EB3 for using the same LC.
 
curious21 said:
hi manwithnoname,
can u also answer my question..plz...
Click to expand...

From your postings I realize that your EB2 was rejected as the job requirements did not qualify. In that case your are eligible to re-file in EB3 ... you are doing the right thing - however I am not conversed with the details of interfiling a new I-140 with a pending I-485. Your lawyer should know about it.
 
You can do the interfiling by sending a letter to service center where the case is pending. It generally takes 3+ months for uscis to put that one in your file. You don't get any update whether it interfiled or not until you get the case really get approved. So no way to know whether interfile has happened.

But in your case, I am not sure that can happen since for the interfile to work, you should have an approved I140 to link 485. You should contact your attorney since I don't know all details of your case.
 
curious21 said:
hi,
did you file your I-485? I'm in the same boat. I also have masters from USA and USCIS denied my I-140 filed in EB2 category. Why didnt you file for a MTR (motion to reopen) for I-140? My compnay attorney is also planning to refile a new I-140 in EB3 category. I had filed my I-485 and I received EAD and AP. do you know if they would be invalid? or can we link the new I-140 with pending I-485??

Anyone has experience in this one?

Really appreciate your response...

Thanks...
Click to expand...

I am sorry to hear that. Once I-140 is denied, the EAD and AP are denied. (I think it is automatic). We cannot link the new I-140 with a pending I-485. You will most likely receive the I-485 denial because the I-140 is denied. It happened in my case. I am filing new I-140 today under EB3.
 
140- denied

Hi curious 21,
I am in the same situation, can you please provide with your current status on the appeal and new 140 please. I am planning to apply for new 140 under EB3 and my lawyer suggests a new LC application along with the appeal, since USCIS adjudicates the 140 app with the LC app.
Did anyone do this process before? thats like starting from square zero and lot of $$$$$$$$$$$$$
140 denied at NSC
new 140 will be applied to TSC under the new regulations

Thank you

curious21 said:
hi,
did you file your I-485? I'm in the same boat. I also have masters from USA and USCIS denied my I-140 filed in EB2 category. Why didnt you file for a MTR (motion to reopen) for I-140? My compnay attorney is also planning to refile a new I-140 in EB3 category. I had filed my I-485 and I received EAD and AP. do you know if they would be invalid? or can we link the new I-140 with pending I-485??

Anyone has experience in this one?

Really appreciate your response...

Thanks...
Click to expand...
 
Hi Scotty,
I am refiling using the same LC on which my EB2 I-140 was denied. What was the cause of your I-140 denial under EB2?
 
NSC denied stating that the job does not require a MS degree. My LC had MS+0 and as alternative BS+2, but USCIS says MS is equialent to BS+5. Not sure if it is lawyer's bo-bo in my LC. He says that if we had put BS+5 in LC, the LC would have got rejected based on DOL rules.

I am filing new 140 under EB3 using the same LC and filing an appeal as well for the denial.

xtronics said:
Hi Scotty,
I am refiling using the same LC on which my EB2 I-140 was denied. What was the cause of your I-140 denial under EB2?
Click to expand...
 
please let me know needs any more info

scotty136 said:
NSC denied stating that the job does not require a MS degree. My LC had MS+0 and as alternative BS+2, but USCIS says MS is equialent to BS+5. Not sure if it is lawyer's bo-bo in my LC. He says that if we had put BS+5 in LC, the LC would have got rejected based on DOL rules.

I am filing new 140 under EB3 using the same LC and filing an appeal as well for the denial.
Click to expand...
 
6th year of H1b - Is extension possible?

Hi scotty136, curious21,

My I-140 got denied today. Since my labor PD is more than 6 months old, I think I cannot use the old labor to refile my 140. hence I need to file a new labor. In that case,do I need to do this new labor filing before 6th year starting. I am going to be on 6th year of H1B in couple of months. Please advise me here whether I will be eligible for extension of H1B.

Thanks
 
You are eligible for H-1B extension if your employer appeal the I-140 decision. BTW - a refile is not subjected to 180 day rule (only the original application). Talk to your employer's lawyer about this.
 
Experience not sufficient

Hi Guys,

I just now got the denial notice from the attorney.

It says that 140 is denied because of insufficient documents to prove experience.

Mine is EB2- I have bachelor's degree.


I provided the following for my previous 2 companies

Along with petition:
Company 1: Notarized letter from a previous colleague stating my jobs and duties and skillsets.
Company 2: Appointment letter.

They put a rfe for experience letter from company 2. And I sent the following:
Company 2: Notarized letter from a previous colleague stating my jobs and duties and skillsets.


USCIS says, the documents I provided are not sufficent for Bachelors plus 5 years of progressive experience.


From the petition:

"
On Nov 8 2007, a RFE was sent requesting for additional evidence that the beneficiary had 5 years of progressive post-baccularate experience in the speciality.
Specifically, the request requested that evidence "of experience must be in form of letter from current or previous employers giving the name, address and title of employer and decription of the experience of the alien, including specific dates of employment, and specific duties."
In response the counsel resubmitted the same evidence from <company A> that had been submitted with the petition and included an affidavit from a co-worker at <company B>.
The evidence from <company A> in itself does not demonstrate the required 5 years of experience nor does it provide any information that indicates that the experience was progressive in nature.
The submitted letter from Mr.<co-worker in company B> is apparently from a co-worker who held the same position as the beneficiary and does not meet the requirements of the Request For Eveidence. Further the letter does not provide any evidence that the experience was progressive in nature.

In summary, the evidence establishes that the benificiary meets the requirement of baccularate degree or its foreign equivalent but does not establish that the beneficiary additionally has sufficient qualifying experience to show equivalence to an advanced degree.
"



Now my attorney is saying the following options:

1) file a MTR provided I get experience letter from my previous companies on letter head.
or
2) file an appeal saying the documents already provided were sufficient

I have 2 weeks time. The 2 previous companies are indian companies and I am not in good terms with them. I think it is difficult to get experience letter from them.

But even if I get letter from them, do you guys think this case has a chance?
Which option to go better? 1 or 2?

Also, could anyone help me in the format of experience letter?
How to show progressive experience?
Also, after we provide letter, will USCIS verify with my previous companies by contactng them? My previous company guys are crazy. Will they say anything bad about my experience?

Any help is greatly appreciated.

Thanks
-M
 
Hello

Hi Justcuriousaa,

I noticed that your I-140 was denied as per your post but also noticed that it was approved later after filing an MTR on your case status details. Could you please let us know in detail as to how you responded? Thanks and Congrats!
 
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