I-140, RFE for credential evaluation, Potential denial, Options?

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Hi Gurus,
I need some help and this place has served best in past, so here is my situation:

I got RFE on my 140 (Vermont center) requesting for credential evaluation. Now my 140 is filled under what used to be EB3 category.
I think the lawyer sent a bad credential report to INS, and I am going to get the "intention to Deny" or "Denial" on my I-140.
Lawyer obtained the credential report from some company and replied the RFE to INS without consulting me. Damn! He had till Oct 14th to reply.

I think the question I am trying to ask is; Is it acceptable to INS to show one degree (4 year Bachelor's in electronics) and experience equivalent to Bachelor's in computer science and Information tech for an EB3 case)?

Here are more details about the evaluation report that is sent to INS.

* My 4 year of B.sc. Eng in electronics is credited towards 3 year of Bachelor's degree in computer science from a accredited college/Uni. in USA.
* He totally ignorers my M. Tech (electronics and comm.).
* He deemed my 5 year 11 months of experience to 1 year and 11 months of academic course work towards Bachelor's in computer science from accredited college in USA ( experience is some how counted wrong and it should have been 6 1/2 years).
* Miss spelt my "Masters" as "Mater" all over the report (I guess that's why he missed it because his software did not recognize it)
* Over all Based on 4 years Engg. in Electronics, "Mater" of Technology from IIT Kgp and 5 year 11 months of progressive experience, Mr. myself has equivalent of Bachelor's in computer science and information technology from accredited college in USA (Wow!..Impressive)

As per lawyer he thinks Bachelor equivalent is all INS is looking for.
But looking at all the discussions available in here, articles on murthy.com and my “Luck”, I guess I am doomed. I don't think INS officer is going to like the fact that experience is used towards Bachelor's degree. It seems that it is more appropriate to use more then one degree together to show Bachelor's degree.

So I got a feeling in next few days or week I am going to get the "Intention to deny” status on my I-140.
I want to know what my options are:
* Does INS always use the status "Intention to deny" and give some more time to follow up on the application or just "deny" it in first shot?
* Should I ask lawyer to do a preemptive follow-up on the reply of RFE or wait till something happens? I am just worried at that point it might be too late.

* Is Status of "Intention to Deny" is open status or at that point it is pretty much denied unless something really changes.

I am pretty sure if I send for another evaluation with some other company, or even the same (ask them to read it properly) I will get a better evaluation.

Any feedback is welcomed (at this point I don’t even mind the abusive replies :eek: )
Thanks,
Me, Myself and my Irony :)
 
Thanks a lot.
Now I will have to wait till monday to get a copy of my ETA from lawyer. It better be fine :)
 
This seems scary.....

This is scary, :confused: :(
Unitednations, in my case the required qualifications are as follows:

"Applicant must have bachelor's degree or equivalent in computer science, engineering or a related field, plus two years' progressively more responsible experience either in the position advertised or related experience".

My qualificatios are as follows:
Bachelor of Science(Physics hons.) = 3yrs
Masters of Science(electronics) = 2yrs
Several computer professional certificates.
No. of yrs of experience in computer field = 6+ ( also mentioned in my I-140 application).

Just out of curiosity, with your experience do you think I will get an RFE/any problem with-respect-to my Educational qualification and or experience and the requirement given in labor.
Thanks.
 
Here is my ETA info.

Took me a while to get hold of lawyer and get this piece of paper. His attitude is more or less like Don't worry about something which has not happened yet.
Any ways:
--------------------------------
Box 13: Has some description of type of technology they are looking for, Experience mentioned is 3 years minimum.

Box 14 is tricky:
For college column it just says : "grad"
For column College or Degree required: "Bachelor's". (Doesn't say any thing more about years of degree or any thing)
Major field of studies: "Computer Science or related field"

Training: All coloumn are nill

Experience: Job offered : Years: "3 or"
Related Occupation: "3"
Related occupation: "Computer consulting, application developing, system analysis"

Box 15: -- (Its nill)
--------------------------------------

Now looking back at my evaluation it appears that My 4 year bachelor's in electronics and Masters in ECE is being put "equivalent to 3 years academic studies toward a Bachelor's in degree in computer Information system from an accredited college or Uni from USA".

As per lawyer a bachelor's means bachelor's, could be 3 year or 4 year.
My question here is; Is there a default defination for number of years for a bachelo'r degree?

Also in case I do get a rejection and I need Appeal it, Can I do followings:
1) Change the lawyer and use some one else?
2) Get another evaluation from some other company, rather take it from 2 different companies?
3) Is there an easy way I can harm the reputation of my lawyer?? :p

BTW name of the company that did my evaluation is "ITES inc." Didn't put any effort at all.
 
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United Nations is correct. This happens all the time since attorneys just use the educational evaluation that is in the H-1B file and do not review it closely enough. If the I-140 is denied, it is important to get new educational evaluations to show the required equivalency (I would suggest 3) and then file a motion to reconsider. Not positive it will work.
 
who determines if you should be considered as Professional or Skilled worker

What determines that within the category of "Professional or Skilled worker" your classification will be "Professional " or "Skilled Worker".

These two sub classifications seems to have some difference in their definition. Following is the cut/paste from http://uscis.gov/graphics/howdoi/eligibility3.htm


EB-3 Eligibility and Filing

EB-3 classification includes:

Aliens with at least two years of experience as skilled workers;
Professionals with a baccalaureate degree; and
Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
While eligibility requirements for the EB-3 classification are less stringent than the EB-1 and EB-2 classifications, you should be aware that a long backlog exists for visas in the "other workers" category. The regulations for EB-3 workers are found at 8 CFR § 204.5.

Skilled worker positions are not seasonal or temporary and require at least two years of experience or training. The training requirement may be met through relevant post-secondary education. The Form ETA-750 (Labor Certification) states the job requirements, which determine whether a job is skilled or unskilled. For more information, please see the Department of Labor's Employment and Training Administration Website.

Professionals must hold a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree.
 
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It is a logical argument, although they are not the arguments that typically are the most successful in court. Generally the way to handle this would be to do a lot of legal research, including into the legislative history behind the relevant statutes and regulations. Then the argument would be that USCIS is not following its own regulations, or that the regulations are not in accordance with the statute. Typically, these arguments are not taken up because the time and cost involved are prohibitive to individual clients. As you mentioned above, a class action is possible but federal class actions are very time consuming and the class certification itself is another difficulty ot be overcome. $20K would be a good start but it probably would not cover the entire attorney fees for a class action.
 
What are my options?

Gurus,
I am currently working on EAD. I did use 7th year extension rule and had my H1 extended for 7th year, which expired in May 2004. I have been using EAD since then. My current EAD will expire in Dec. I need to apply for renewal.

I wanted to know what my options are in case I got a "denial" on my I-140.
(EB3, RFE on education, lawyer sent a bad evaluation report as RFE response)

1) Appeal the I-140 and apply for the renewal of EAD.
2) Apply for EAD right now, and in case I-140 is denied, and EAD is denied along with it, Appeal BOTH I-140 and EAD?
3) Appeal the I-140 and apply for 8th year extension on H1 VISA?

Please help me here, do I have any options or I am done :)
 
Thanks man,
That doesn't sound too bad. Hopefully I will be able to use 90 day rule to get the Intrim EAD. May be a month on unpaid vacation :)
 
RFE response recvd on 08/18 - Not a single update since then

This one is torturing me now. Not even a single update in LUD. Does it mean any thing?
BTW filed EAD online on 25th Aug.
One bad thing with Online EAD, and I guess people should take it in to consideration. The average wait time for photo/Fp appointment is around one month. And I guess the count of 90 days will not begin till this formality is done.
 
If denied can I file a new I-140 pointing to pending I-485

UN,
In case I-140 is denied, Is it possible to file a new I-140 pointing to pending I-485 instead of appealing I-140. At most I will loose priority date I guess?
Because with Appeal thing it may take too long, and I might not be able to wait that long without an EAD.
Thanks
 
unitednations said:
Lawyers would suggest to do both at the same time. Motion to reopen with new evidence and file a new 140 with new evidence.

I'm not sure if you can reopen a denied 485 with a new 140. That would be a question for a lawyer.
Click to expand...

Thanks UN
 
unitednations said:
from immigration-law.com

08/21/2004: Advisory on "Bachelor's Degree or Equivalent" Proof

Lately, there are a growing number of people who faced a problem because of their misunderstanding of the education requirement in the permanent labor certification application. The victims involve two classes of aliens: One arises in the context of the substitution of the certified labor certification application and the other involves a new filing of the labor certification application.
When the labor certification required a "bachelor's degree or equivalent" in the education part of Item 14 in the ETA 750 Part A, Application for Alien Employment Certification, it means that employer requires a bachelor's degree or equivalent foreign degree. The term "equivalent" in this context does not mean that one can use credential evaluation that determined that the combination of the alien's "education and experience" was equivalent to a bachelor's degree. Unless it is specified such in Item 14, the education requirement must be established by "education only" and cannot consider experience. This has been made clear by the USCIS opinions and AAU decision. Accordingly, if he/she used the employer's certified labor certification for someone else for substitution, he/she must meet the "education" requirement without considering experience, no matter what the foreign credential evaluation said, unless the labor certification application specifically stated that the employer will accept combination of education and experience in lieu of a bachelor's degree. For instance, the Bachelor of Science degree in India is a three-year undergraduate program and short of one year to make it equivalent to a bachelor's degree in the U.S. If he or she took post graduate diploma education one or two years in that specialty, it will make "equivalent to a bachelor's degree." However, it he/she only has a three-year degree and no other education, no matter whether one has 20 years of experience in the specialty, he or she will be determined unqualified for this labor certification job unless the labor certification application specifically stated that the employer would accept the combination of education and experience.
The denial will not be known until I-140 is adjudicated by the USCIS after wasting a tremendous amount of time. The DOL does not deny labor certification application on this issue because the issue of alien's eligibility for the job is the jurisdiction of the USCIS. Before too late, people should review their labor certification application carefully, no matter whether it is a substitution case or a new case, in order not to experience a panicking nightmare months or years after starting the green card journey.
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Hi UN,

I require your urgent Advice.

My case is EB3 abor substitutuion @ VSC filed Concurrently on 04/15/04.

Column 14 of the ETA shows Education Required as Grade School 8
High School 4
College School 4

College Degree Required Bachelors.(No Equivalent Mentioned).

Major Field of study Comp Sci OR Business Administration.

I have 3 Yrs Degree (Bachelors of Commerce) and 2 Yrs Master Diploma in Business Administration.

The guy i am substituting for had the same 3 Yrs Degree as mine( Bachelors in Commerce) and he had a Masters in Labor studies.

Would the USCIS consider my Educational qualifications as Bachelors as per the requirement in Column 14 of the ETA? ie would the USCIS accept the labor substitution??

In case they do not accept the same is there any Recourse? What are my Options(Evaluations,Expert Opinions etc)

I have had 2 LUD's to my I-140(08/13/04 and 08/16/04) without any changes in the Status Message or any E-Mails from USCIS.

I am anxious and nervous.

Regards.
 
HI UN,

I tried the Search for goodluck140, the only result it shows is the Thread where you have given the same advise to lector 007 about contacting goodluck140.

Is there any way you can help me in contacting him?

Regards.
 
unitednations said:
Seek out user goodluck140.

He received RFE for same thing and his lawyer did a fairly good response and he got approved.

He has put some people in contact with his lawyer.
Click to expand...


Thanks unitednations,

goodluck_140 's case is a little different from mine in that his ETA had the wordings BACHELORS OR EQUIVALENT.In my case it is only Bachelors.

I was going through the various Post of tsnaresh(another guy you had quoted).

Even he had a 3 Yrs Degree and 2 Yrs Masters Diploma from NIIT.
He has mentioned in one of his Post that he got his NIIT Qualification(and not his actual Bachelors degree) evaluated as the Foreign Equivalent to the US bachelors Degree.This idea looks Promising. What would you suggest?

MY ETA Column 14 mentions Bachelors as the qualification and Field of Study is Shown as Computer sciene OR Business Administration. My Masters Diploma is in Business Administration.Can i try to Get this Masters Diploma to be Evaluated as being Equivalent to the US Bachelors Degree.

Regards
 
I140

Can an approved I140 ever be revoked, say during I485 process, and educational qualifications verified?

Thanks.
 
unitednations said:
I don't think equivalent is a big issue. My labor certification didn't have it. USCIS has only stated that equivalent is only valid if it is clearly defined, ie., combination of degrees, etc.

I would follow goodluck 140 case and at the same time try to get any one of your degrees to be equivalent to u.s. bachelors. btw, the reason I say that not using equivalent isn't a big deal is that if uscis picked on this then it would mean that you had to have an actual u.s. bachelors degree. Most of us, including myself don't meet that criteria.
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Hi Unitednations,

This past week i have been totally freaked out over a Possible I-140 Failure because there was no Equivalent word metioned im ETA Column 14.This has been infered from a Larg number of Cases and people who have posted their RFE and Denial instances on various threads.

I took an appointment with my Attorney and met him.In Response to my earlier mail to him he had replied to me thus:

Start Quote.Generally speaking, the immigration service takes the position that a master's programme in any discipline intrinsically entails a bachelor's in the same, e.g., if you hold a Master of Science degree in Chemical Engineering, you also "hold" a Bachelor of Science degree in Chemical Engineering. This would apply even if your actual Bachelor degree was in another discipline such as Mechanical Engineering or, even, Agriculture. Your Bachelor of Commerce degree and Master of Business Administration , combined, are the equivalent of a U.S. Master of Business Administration degree. We submitted a credential evaluation along with UBICS' immigrant visa petition on your behalf stating the same. Your [equivalent] Master of Business Administration , then, entails a Bachelor of Business Administration degree, i.e., one of the qualifying disciplines as listed in the labor certification application. Importantly, this [equivalent] background was earned over number of years of college, i.e., more than the 4 required. You, therefore, meet the education requirement despite having earned your bachelor's degree in only 3 years.

It would be highly unusual for the immigration service to view your background as not qualified for this position. I'm very confident, however, that your concerns about the education requirement won't become an issue and, even if they did, that we would be able to easily counter the immigration service's contesting of this point. End quote.


To be Honest i had not known about this credential Evaluation having been done and submitted with my Petition.Should i be beathing easy now?

Regards.
 
unitednations said:
Breathing easier? With the uscis you never know.

The education qualifications you submitted with the 140 was probably the same one that got submitted with the h-1b.

If the education evaluation says that the combination of the bachelors and masters is equal to u.s. bachelors then you run into the issue of combination of degrees to get equivalency. This could be an issue. i think most of the people who fall into this trap is when they have three year degree plus certificates in computers, etc. instead of having a masters. It seems that you have a masters degree which will greatly benefit you.

If the education qualifications state that your master degree is equal to a masters degree in USA then you shouldn't have an issue.
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Hi unitednations,

I got a Copy of my Credential Evaluation.It is by Trustforte
They have Evaluated my Masters Diploma in Business Administration as being equal to an MBA program conducted in an Accredited Academic Institution in the US. They have certified as

Quote Based on the Number of Years of Coursework,the nature of the Coursework,the Grades attained in the courses,and the hours of academic work, , combined with the completion of his baccalauratte -level studies,it is the equivalent of a master of Business Administration Degree from an accredited institution of higher education in the united States.End Quote.

Regards.
 
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