3 years degree EB3, 140 at NSC - please advice

[maansi28]

140

Thanks Anilt,
Vacation recap - doesn;t work for me

In that case, since applying for a fresh labor again entails 45 days wait + labor approval+ 140 filing+140approVal, I don't think I have that kind of time before my H1 expires.
So in that case would filing a MTR (to consider euivalency to a masters in US) be my best option (using thedegreepeople or such agency)?

thanks
M

 

[anilt75]

Thanks Anilt,
Vacation recap - doesn;t work for me

In that case, since applying for a fresh labor again entails 45 days wait + labor approval+ 140 filing+140approVal, I don't think I have that kind of time before my H1 expires.
So in that case would filing a MTR (to consider euivalency to a masters in US) be my best option (using thedegreepeople or such agency)?

thanks
M

--Chances of doing an MTR on I-140 (with Sheila's evaluation) and getting an approval before you run out of H1B time(Jan 07?) is slim to none (strictly my opinion). Ofcourse you can give it a shot. People get lucky.Honestly, at this point, you should exhaust every option you got to revive the pending case.

But, above all, I think your primary concern should be to extend H1B beyond 7th year. Once you have a solution for that, you can do any number of appeals, MTRs, Filings in EB3 , EB2 etc., or start a new process altogether etc.,

If I were you , I would get it confirmed if I can use someone else's pre-approved labor to extend my H1B beyond 6 years. If I can, then I would find an employer who is willing to substitute me on that labor.Simple EB3 substitution would keep me moving forward on H1B beyond 6 years. Meanwhile, I can experiment reviving my own case at NSC.



Your labor is not 365 days old and

 

[maansi28]

140

Thanks again, Anil.
Were you posting and the message got cut off?

I have another q -
would it be possible to convert from an H1B on completion of a 6 year stay in the US, to an H4 so that I don't have to leave US? (My husband still has a valid H1)

And if so, will it be possible to apply for a fresh H1 without leaving the country?

 

[kal1234]

Maansi28,

Reading the I140 denial as I understand, you have evaluated your 3yr degree + MCA to Masters in Chemistry. If you evaluate your degree again and comeup with a different outcome, say Masters in C.S, you might fall into the trap "matter of sea". NSC uses this argument that an earlier evaluation cannot be radically different from the current one. UN has pointed this in one of his posting some time in 2002/2003.
Unless you have a convincing argument that your new evalution is the correct one "--greatest", NSC is not going to budge. Be cautious with the new evaluation and make sure you close this loose end wrt to matter of sea. Also, Make the evaluator aware about this problem and maybe he can give you some more choices.Anil can comment on this as well.

To answer about your question on H4, No you cant stay on "H or L" Visa after six years with out an extension of some sort.

Good luck.

 

[maansi28]

Thanks kal1234 and anil

anil - I found the following "Attorney Murthy : Yes, it is true that the Department of Labor apparently has introduced a regulation to disallow using pre-approved labors, since they believe that it results in fraud and misuse of the LC system and process. So spending a lot of time and money based solely on being able to use a pre-approved labor may not be wise. However, on the other hand, as with most gov't regulations, it may take a few months or even several years for a proposal or proposed regulation to become the law. "

Is the use of preapproved labor disallowed?

 

[kal1234]

Thanks kal1234 and anil

anil - I found the following "Attorney Murthy : Yes, it is true that the Department of Labor apparently has introduced a regulation to disallow using pre-approved labors, since they believe that it results in fraud and misuse of the LC system and process. So spending a lot of time and money based solely on being able to use a pre-approved labor may not be wise. However, on the other hand, as with most gov't regulations, it may take a few months or even several years for a proposal or proposed regulation to become the law. "

Is the use of preapproved labor disallowed?

Not yet. It might be in future, nobody knows when that will be.

 

[maansi28]

140

Thanks Kal1234 and anil, you guys have been so great.

Can I bother you with one more question?

My employer says that he has a pre-approved labor that I could use:
1) In that case, how important is that the pre-approved labor has similar job requirements as me? (For instance, if I am a project manager and am trying to use a pre-approved labor for a business analyst, is that ok? I could always tailor my resume, but wouldn't USCIS figure out that there is somethign fishy?
2) To use the pre-approved labor, the pre-approved lc should have been approved > 365 before my H1 6 years expiry...correct?

again, many thanks
M

 

[anilt75]

Thanks again, Anil.
Were you posting and the message got cut off??

--Sort of. Not very important.

Would it be possible to convert from an H1B on completion of a 6 year stay in the US, to an H4 so that I don't have to leave US? (My husband still has a valid H1)?? And if so, will it be possible to apply for a fresh H1 without leaving the country?

--From what I understand, technically, temporary work visas under non-immigrant category have a time limit and the time period is not exclusive to any category. It is generic and uniform across H1, H4 or L visa. Meaning, you cannot spend 6 years on L visa and switch to h1 for another 6 years.

Ofcourse one can leave the country and stay for a year or so to get back on non-immigrant visa again. In that case the visa period starts from scratch.

But here is something you can explore. Your husband's H1B period is still valid. I believe you can file I-539 and get a dependent visa (h4) until his h1b period lasts. Technically, you are ( or becoming) his dependent. Principal alien's approved time period is what counts for dependent visa as well. If your husband can go for 7th year, you should be allowed to go with him as well. I could be wrong. But sounds reasonable to me.

I guess you already know that you can still pursue the existing GC case or a new one altogether.H4 status wont stop you from doing that. GC is for future employment.

 

[anilt75]

"Can I bother you with one more question? "

--Why not? Today is friday

"My employer says that he has a pre-approved labor that I could use:"

--Awesome! Check with someone if labor substitution could get that priority date to push you for 7th year.

"1) In that case, how important is that the pre-approved labor has similar job requirements as me?"

--Let me put it the other way. How suitable are your credentials to the pre-approved labor?

"For instance, if I am a project manager and am trying to use a pre-approved labor for a business analyst, is that ok? I could always tailor my resume, but wouldn't USCIS figure out that there is somethign fishy?"

--A person can have multiple skills and be qualified for multiple jobs. As along as you have the credentials required for Business Analyst position( or whatever pre-approved labor has asked for), you should be ok. Its not like you are substituting for a physician or nurse etc.,

USCIS doesn't(and shouldn't) care how many labors you already have , for what job requirements they are and what all other jobs you are going to take up in the future.

"2) To use the pre-approved labor, the pre-approved lc should have been approved > 365 before my H1 6 years expiry...correct?"

--Not necessary. The pre-approved labor should have been filed 365 days before your H1B expiration.Filing date counts. Not the days since approval.

 

[A0001]

Thanks Kal1234 and anil, you guys have been so great.

Can I bother you with one more question?

My employer says that he has a pre-approved labor that I could use:
1) In that case, how important is that the pre-approved labor has similar job requirements as me? (For instance, if I am a project manager and am trying to use a pre-approved labor for a business analyst, is that ok? I could always tailor my resume, but wouldn't USCIS figure out that there is somethign fishy?


There may not be a problem for the future position.
but literally no use if it specifies BS or MS requires for that Labor position
NSC will pull OLD case and denai again based on ineligibility in record.
but you could get H1 extention if it is more than 365 day OLD.

please let me know details PERM form H 8* also.


2) To use the pre-approved labor, the pre-approved lc should have been approved > 365 before my H1 6 years expiry...correct?

The pre-approved labor should have been filed 365 days before your H1B expiration
again, many thanks
M

 

[kal1234]

--Sort of. Not very important.




--From what I understand, technically, temporary work visas under non-immigrant category have a time limit and the time period is not exclusive to any category. It is generic and uniform across H1, H4 or L visa. Meaning, you cannot spend 6 years on L visa and switch to h1 for another 6 years.

Ofcourse one can leave the country and stay for a year or so to get back on non-immigrant visa again. In that case the visa period starts from scratch.

But here is something you can explore. Your husband's H1B period is still valid. I believe you can file I-539 and get a dependent visa (h4) until his h1b period lasts. Technically, you are ( or becoming) his dependent. Principal alien's approved time period is what counts for dependent visa as well. If your husband can go for 7th year, you should be allowed to go with him as well. I could be wrong. But sounds reasonable to me.

Anil, My understanding of the law is that you cannot exceed 6 years on a 'H' (H or H4) status unless you have an extension. In the case of Maansi28 her 6 term limit expires in Jan 2007. Technically she cant move to H4 as a dependent after Jan 2007.

I guess you already know that you can still pursue the existing GC case or a new one altogether.H4 status wont stop you from doing that. GC is for future employment.

 

[anilt75]

Kal1234,

"Anil, My understanding of the law is that you cannot exceed 6 years on a 'H' (H or H4) status unless you have an extension. In the case of Maansi28 her 6 term limit expires in Jan 2007. Technically she cant move to H4 as a dependent after Jan 2007. "

--When H and L visa count toward same six year period, then based on that, I am tempted to think that if h1b has an extension, then it should count toward his/her dependents as well. The reason for extension on H4 (beyond 6 years) can be derived from principal alien's h1b period extension.I am not aware of any restriction on this.Correct me if I am wrong.

 

[kal1234]

Kal1234,

"Anil, My understanding of the law is that you cannot exceed 6 years on a 'H' (H or H4) status unless you have an extension. In the case of Maansi28 her 6 term limit expires in Jan 2007. Technically she cant move to H4 as a dependent after Jan 2007. "

--When H and L visa count toward same six year period, then based on that, I am tempted to think that if h1b has an extension, then it should count toward his/her dependents as well. The reason for extension on H4 (beyond 6 years) can be derived from principal alien's h1b period extension.I am not aware of any restriction on this.Correct me if I am wrong.

Here is the text and the link http://www.murthy.com/arc_news/a_gf.html scroll down and you will find it.
H1B and H4 Computation for the 6 Year Cap : The position of the INS has always been and continues to be that under the statute and the present regulations, a person who had six years in H1B status cannot change to H4 status because the 6 year cap applies to the H status. Based on AILA's request, the INS has agreed to consider whether a regulatory change to allow a conversion from H1 to H4 is advisable as a matter of policy. The Law Office of Sheela Murthy understands that several applicants have received an approval from H1B to H4 after reaching the 6 year cap, probably in error by the INS but INS could still consider such a person to be in violation of status for the bars.

 

[anilt75]

Here is the text and the link http://www.murthy.com/arc_news/a_gf.html scroll down and you will find it.
H1B and H4 Computation for the 6 Year Cap : The position of the INS has always been and continues to be that under the statute and the present regulations, a person who had six years in H1B status cannot change to H4 status because the 6 year cap applies to the H status. Based on AILA's request, the INS has agreed to consider whether a regulatory change to allow a conversion from H1 to H4 is advisable as a matter of policy. The Law Office of Sheela Murthy understands that several applicants have received an approval from H1B to H4 after reaching the 6 year cap, probably in error by the INS but INS could still consider such a person to be in violation of status for the bars.

--Thanks for posting this. Makes it very clear.

 

[maansi28]

Thanks

Thanks Anil and Kal1234 - for all your expert help

Maansi

 

[adi_gc]

Please help me....

Hi,

My previous I-140 was denied twice (filed twice using same labor, second time with Sheila’s eval) due to 3 year degree. I started a new PERM and now ready to file I-140. But, I may be in trouble again….please review below,

H section - Job opportunity Information
4. Education: Minimum Level Required- OTHER
4-A. If other is indicated in question 4, specify the education required: BS or EQUIVALENT (EQUIV = 3 YR DEGREE +3 YR WORK EXP OR ADDITIONAL COURSE WORK)
4-B. Major Field of Study: CS, MATH OR PHYSICS
5. Is training required in the job opportunity? NO
6. Is experience in the Job offered required for the job? YES
6-A. If Yes, number of months experience required? 36
7. Is there an alternate of field of Study is acceptable? NO
8. Is there an alternate combination of education and experience that is acceptable? NO
8-A. If Yes, Specify the alternate level of education required:
8-B. If Other is indicated in question 8-A, Indicate the alternate level of education required:
8-C. If applicable, indicate the number of years experience acceptable in question 8:
9. Is a Foreign education equivalent acceptable? YES
10. Is experience in an alternate occupation acceptable? YES
10-A. If Yes, number of months of experience in alternate occupation required: 36
J: Alien Information
11: Education: highest level achieved relevant to the requested occupation: OTHER
11-A: If Other indicated in question 11, specify: BS EQUIVALENT (3 YRS DEGREE + ADITIONAL COURSE WORK)
12. Specify major field of study: PHYSICS
Summary of Educational Evaluation - Trustforte
My 3 year degree from India plus additional post secondary courses (Diplomas) are equivalent to Bachelor’s Degree in CS from a US University

Questions
-Since Question 8 is answered NO, will I be able to combine the education?
-Can I do anything before filing I-140?

Ideal situation would have been to mention ‘Yes’ for question 8, ‘Other’ for question 8A, ‘3 years degree + additional course work’ for question 8B and ‘36months’ for 8C.

My lawyer said that this won’t be a problem because we have mentioned the 3 year degree (alternative) as the primary education requirement (question 4/4A).!!!
I am planning to file I-140 this week and would like your inputs on any options.

Thanks,
ADI
Note:- Total 6 years of experience before joining the current employer

Guys,

Please help me with your comments or suggetsions?

I have filed the PP I140 yesterday?

Thanks

 

[Chocolate]

Info needed.

My labor was certified for BS+5 yrs experience and my experience is progressive too. ONly dilemma is 1 yr experience shown is during my final year BE. will it pose a problem. Even though that is there i also have 5 yrs progressive work experience apart from that before i joined the present company.And i have an MS too.So can i seek Eb2.Any inputs.

 

[Chocolate]

thanks for the input

To get labor certified; you generally can't use the experience gained with the company sponsoring you for the greencard. Department of labor doesn't care if the qualifying experience was before, during or after you received the bachelors or combination thereof; They mainly care if it was gained with the sponsoring employer.

However, USCIS doesn't care who you gained the experience with as long as you met the education/experience requirement before the date of filing labor and for EB2 purposes the qualifying experience had to be after you received Bachelors Degree.

Example:

To get labor approved and requirements are Bachelors plus five years of experience.


Graduated from University: June 2000
Joined sponsoring employer: June 2004
Filed Labor: June 2006

To get the labor approved; you would need to show five yers of experience before June 2004 (before joining emploeyer).

To get the I-140 approved you need to show the five years of experience before June 2006. Since you can use experiene gained with employer for I-140 purposes then all fiver years of erxperience for I-140 would have been after your date of graduation.

Your case wouldn't have problems with perm or I-140.

Thanks for the input. I have 5 yrs of experience before i joined my present employer.Apart from that 1 yr of experience i do have 5 more yrs of experience which is progressive.After my BE i was a training executive for 6 months before i came here for my MS and i worked as a RA for 1 1/2 yrs and later joined a fortune 500 company as software developer and worked there for 4 yrs. Later i joined this company and 6 months later i applied for GC.can i show the experience i gained after BE and claim EB2.Will this experience work as progressive work experience .Also does it need to be mentioned in ETA 750A in item 14 that it shud be BS+5 yrs progressive experience in exact words.Any inputs

 

[Chocolate]

Helpful input

Keep it simple.

See my example above.

No: the labor doesn't need to say "progressive".

Thanks for the input. sorry for the long post.was little worried. So i will go ahead and send all the experience letters while filing 140 in that way USCIS can determine my case to be EB2. I am little worried as i dont want to file 140 in EB3 as i waited for 2 1/2 yrs to get my labor approval and dont want to wait for yrs together for GC. If i can file in EB2 i can file 140/485 /ead/ap concurrently and get my ead.hence this dilemma.Thanks for the input.

 

[adi_gc]

Thanks UN