140/485 denied - please provide your inputs

L

long_innings

Registered Users (C)
My 140 and hence the underlying 485 has been denied on educational grounds. Here's a brief about my case- I have a B.Tech in Chemical Engg. (4 yr degree) and an MMS (Masters in Management Studies, 2 yr degree). The USCIS adjudicator issued a NOID questioning the relevancy of my Masters to my labor petition which I will post in my next post. In the response to the NOID, I provided an educational evaluation from Morningside Evaluations that equated my degrees to a US MS in Mgmt. w/ a concentration in Comp. Info. Systems degree but, apparently, that didn't do the trick. My H1B visa expires in Dec'05 and my 6 years get over in Apr'06. Here's what all I am thinking I could do parallelly:
  • To file an appeal wherein I try to provide educational evaluations from top firms.
  • Find a substitute labor (preferably EB3) within my company ideally with PD of 2001 to avoid retroression.
  • File a new PERM labor in EB2/EB3 but I will have to deal w/ retrogression here if EB3. Also, I have been w/ the same company for more than 5 years since coming to the US. Can I use this experience now and file under EB2 PERM?
Please post your suggestions/advise/inputs on what you feel would be the most viable approach, share your experiences and also point me to anything else that I might have completely missed.
P.S. My wife (who has a US MBA) will start working from September on her own H1 and I could hope for her EB2 applications to be processed sometime after that if retrogression doesn't hit EB2.

Thank you.
 
My labor requirements

OUR SOFTWARE ENGINEER POSITION

Company X is always seeking qualified professionals to work for our company in various technical positions, especially qualified Software Engineers. By employing skilled and experienced Engineers from various backgrounds, we are better equipped to serve our various and ever changing clientele. As a member of a software engineering team, a successful candidate will be responsible for the design, development, implementation and customization of business applications (e.g., finance, supply, distribution, etc.). The position therefore requires the candidate to: work with development tools; assist with design enhancement; install, test and debug the application and system; and, perform other independent assignments.

This Software Engineer position requires that a successful candidate have, at a minimum, a Master's degree in Engineering (any discipline), Computer Science, Information Science, Physics, Math or an academically equivalent field, plus one year of experience in the job offered or in a related occupation (e.g. programmer, programmer analyst, systems analyst, software consultant). In the alternative, our company will accept a Bachelor of Science or equivalent degree in Engineering (any discipline), Computer Sciences, Information Sciences, Physics, Math or related field plus five years of progressive post-baccalaureate experience as a computer software engineer, or in a related occupation (e.g. programmer, programmer analyst, systems analyst, software consultant). As will be shown, Mr. long_innings more than meets our requirements.
 
Last edited by a moderator:
Now
your is denied OR NOID?


Thanks,
rb180
I-485 pending EB3 now got stuck for ever........................
 
Hi unitednations-
It's amazing that practically everybody in the forum wants your inputs and you are able to get to each one. :) :cool:
Why didn't uscis accept the argument that your field of study was in computers
Click to expand...
In my MMS transcripts, towards the very end there is a line that says that my major Group was Marketing, that could have been my undoing despite the Morningside evaluation. My attorney (who is just about passable) didn't submit any educational evaluations at the time of my 140 filing and that must have triggered the NOID. And once, you have the NOID, I guess, the scrutiny on your application is so much more. Also, in my case, the USCIS adjudicator is a son of a gun. :mad:

I have a few more questions for you:
  • Does the weight of one evaluation company significantly differ from the weight of another in the eyes of USCIS?
  • I spoke w/ my Company today and they don't have any labor certs w/ PD of 2001. Does that mean that I rightaway go into retrogression even if I get a labor w/ PD 0f 2002?
  • Do you feel switching companies right now and filing in EB2 PERM is a safer/better option. I would be able to use the 5 years of work ex w/ my current company. But then I lose on the appeals part.

I will post the gist of my email conversation w/ my attorney in my next post. I had asked him a similar set of questions that I first asked you.

Thank you.
 
Hi-
For those who have had a 140 denial on educational grounds, can you please share the thought process that you went through in terms of:
  • what all did you do or are doing for filing the appeal
  • your backup plans like filing a new 140 on a substitute labor or filing w/ the same labor and switching to an EB3 category if you were EB2 before etc.
  • anything else that you might have done or are going to do like joining a new company and filing under PERM labor etc.
That would answer some of the questions that I have posed in the post above.

Basically, I am torn b/w joining a new company or sticking with my current company.

The pro for joining a new company is:
  1. Hopefully, I can file an EB2 PERM labor as I can use all the 5 years of my current company's experience and therefore don't need to depend on my Masters (MMS).
The con is:
  1. I can't appeal on my current denial.

The pro for sticking with my company are:
  1. Hope the appeal or a substitute labor works.
The cons are:
  1. Since, I don't want to risk using my Masters (MMS) degree again, I would have to file in EB3 if it's substitute labor and risk retrogression.
  2. I would have to rest my fate in the hands of my not-so-competent attorney.

Any inputs would be valuable in helping me decide. As an fyi, my H1 expires in Dec' 05 and my 6 years in Apr' 06.

Thank you.
 
long_innings,
In forum, I have seen many EB3 PD people got I485 Approved after retrogression to JUN02, So I think you should be okay. you can see in I485 forum about this.

for your case, best if anybody experienced PERM Lawyer used for EB2 then it would be good.

your case is fit for EB2 and in labor requirement you have to put in different way of showing your experiences so that MBA degree will dont have problems


Good Luck
rb180
 
sameer89 said:
Hi long_innings ,
Are you from BITS,Pilani?
Click to expand...
No, I am not from BITS P though I have been there for BOSM (Birla Open Sports Meet). Unfortunately, I couldn't make it to any of the Oasis fests.

I am from a college that has become the newest IIT in the country.
 
can't believe they deny 140 for guys from Roorkee (guessing) on educational basis ! . Well, this whole thing is an organized BS.. hang in there.
 
Last edited by a moderator:
long_innings said:
Hi-
For those who have had a 140 denial on educational grounds, can you please share the thought process that you went through in terms of:
  • what all did you do or are doing for filing the appeal
  • your backup plans like filing a new 140 on a substitute labor or filing w/ the same labor and switching to an EB3 category if you were EB2 before etc.
  • anything else that you might have done or are going to do like joining a new company and filing under PERM labor etc.
That would answer some of the questions that I have posed in the post above.

Basically, I am torn b/w joining a new company or sticking with my current company.

The pro for joining a new company is:
  1. Hopefully, I can file an EB2 PERM labor as I can use all the 5 years of my current company's experience and therefore don't need to depend on my Masters (MMS).
The con is:
  1. I can't appeal on my current denial.
Click to expand...
Not true .. you can still appeal. Remember GC is for a future job and not for the present job. as long as your current employer is OK with sponsoring your GC even though you will ditch him for a new job, this will work as usual.

Let me be straight here:
1. You can have more then one labor petitions pending / approved.
2. You can file more then one 140 applications.
3. You can file ONE and EXACTLY ONE 485 application.
The pro for sticking with my company are:
  1. Hope the appeal or a substitute labor works.
The cons are:
  1. Since, I don't want to risk using my Masters (MMS) degree again, I would have to file in EB3 if it's substitute labor and risk retrogression.
  2. I would have to rest my fate in the hands of my not-so-competent attorney.

Any inputs would be valuable in helping me decide. As an fyi, my H1 expires in Dec' 05 and my 6 years in Apr' 06.

Thank you.
Click to expand...

OK ..
1. You should file for a labor right away.
2. You should make every effort to keep the current labor afloat. By keeping the current labor afloat, you can continue to enjoy H1B benefits (aka extensions). A labor is not considered to be denied until your application is denied by the AAO. So theoretically, if your appeal fails and the MTR is sent to the AAO, you can still apply for H1B extension based on this labor.
3. Hire a good attorney who knows what he/she is doing.

As far as evaluations go, USCIS does not care who has done it. What they care is the conclusion that is reached in the evaluation. There are several ways to do the same thing and it appears to me that your evaluation by morningside evaluation agency is not correct. Anyway, what I will say is that is all water under the bridge. I think you got a chance to fix your application during NOID, but the steps taken by your attorney were not adequate enough.

I can understand the anger and frustration at USCIS, but you should remember one thing very very clearly. USCIS receives millions of applications every day. They do not have a bias on who you are or what you do. They only act on what you present. Remember this every time you deal with them - "What you present to them is IMPORTANT".

I wish you best of luck ..
 
Last edited by a moderator:
After a somewhat long hiatus from the forum, I am happy to share that my I-290B (MTR and Appeal) was filed on July 11th. I added the I-290B case number to my online status check portfolio and saw that the LUD for this case is 7/19 with the following status message...

Your I290B NOTICE OF APPEAL TO THE COMMISSIONER was received on July 13, 2005. We mailed you a receipt with information about processing. It is taking between 0 and 0 days for us to process this kind of case. We will mail you a decision as soon as processing is complete.
Click to expand...

Has someone else seen a similar message for their I-290B and does it mean that the I-290B is current (0 and 0 days).

Thanks.
 
You must log in or register to reply here.
Top