485 Denied. Need Advise (140 denied, substitute labor)

[dazzling]

unitednations .. please help

Might as well add my opinion.

My labor required bachelors with concentration in accounting, finance.

My bachelors degree was in economics. However, I had enough courses for it to be considered an accounting degree even though my major was economics. My evaluation equated my degree to accounting.

Lesson: doesn't matter what your major is. if you can get it equated to the field of study in labor then you are fine.

unitednations ..

one more help needed. I received the denial letter today. It is because of education.

Here is what the letter says:
1. Labor says that education should be Master or Bachelors with 5 years experience and experience should be 2 years. INS interprets this as Masters with 2 years experience or Bachelors with 7 years experience. On paper they could find only 3 years and 7 months on my application as of labor date with Bachelors degree.
2. My company made a mistake in the year in which I started working with them (instead of 2001 they said 2002). So INS found a gap of one year which was unaccounted for by experience letters. They made a nice table in the denial letter to explain what they are seeing.
3. My company did not submit my 750B with the substitute 140 application that they noted and pointed out.

Based on above 3 reasons the application got denied.

Questions:
1. I am getting education and experience evaluation done from trustforte to prove education and experience credentials. I will make sure that they write what the labor requires.
2. I plan to submit all my W2s to prove employment start date mistake. Should I submit all my paystubs also. I dont want to burden the appeal with too much documentation. What do you advise?
3. 750 Part B will be submitted.

Now I am confused which lawyer I should use. My company wants to use Amarnath Gowda (www.gowda.com). I am not sure if he is a good lawyer for this scenario. I will be talking to him first thing Monday and find out what he says.

I have also sent an email to Rajiv Khanna explaining my situation and I will talk to him on Monday too. If you dont mind telling, which lawyer did you use? All I want to assure myself is that the lawyer knows what he is doing and has handled similar cases with success in the past. If you want you can send me an email at dazzling_immigration@yahoo.com. The PM option to you is disabled, else I would have PMed you.

And thanks man for the tonnes of advise you have given me. If an opportunity permits ever, you deserve a big treat from me .. of course my mind is now involved with this shit and hopefully this will get over soon.

Thanks a lot.

 

[dazzling]

Aren't you missing the important part that you have a masters. This was not sent to uscis from your other posts. If you send in an evaluation of your masters then you shouldn't have any problems meeting the criteria of labor certification? If it wasn't sent in make sure you state that it was not sent due to error/oversight. Also, to be on the safe side submit the transcripts of your masters with the evaluation.

The one year gap shouldn't impact denial/approval. Simply because you can't use the experience you gained at the current employer and especially if it is after labor priority date. However, since they mentioned it you should send in w2's to prove you were working for them. I would also send in h-1b approval showing the date that you were able to start working with the company.

Not submitting 750b was your lawyers mistake. This should easily be overcome.

I think key issue is Masters. Send in the evaluation with transcripts, send in h-1b approval notice showing date that you were authorized to work with employer (include w2's as even further proof, be careful of sending this in as they haven't questioned ability to pay, you don't want to get that on their radar. if you have been paid proferred wage then send in w2, but I think you should be fine just with h-1 approal notice). Complete the 750b form.

My lawyers name was angelica grado wright. Their website is apimmigration.com. I wouldn't necessarily recommend them because they got me in the mess in the first place.

It looks pretty straightforward since you didn't send in the masters evaluation.

Thanks unitednations. I really appreciate your help.

My masters diploma was sent, but it states post graduate diploma in management from a very very prestigious indian bschool (this is considered equivalent to MBA all over the world). The evaluation was not sent, and I do plan on sending it ...

1. Lawyers brief explaining all the 3 points pointed out by USCIS.
2. Education and work experience evaluation from trustforte. I am getting a new evaluation done with current date and getting it for both education and work experience.
3. All transcripts and degrees + other certifications etc again for education.
4. All experience letters again for work experience.
5. My W2s for all companies I have worked for (I do not have any issue on this as I was always paid more then prevailing wage for all H1s, was paid at the labor wage from 2002-2004 march and am paid 7% higher then labor wage at this point of time)
6. All H1B approval notices to prove I was never out of status.
7. Employment acceptance letter from the current employer.
8. Experience letter from the current employer. I joined this employer in 2001 and the labor is from 2/2003 so I still have about 1.5 years of experience with this employer that should count in my countable experience.

I think this list is exhaustive. But I will talk with the lawyers and get their opinion as well.

 

[Cheekoo]

unitednations

It was briefed to me by more than 1 Lawyer. At the time of filling I140 ... person must have 2 years min experience. Sound illogical but they do not count any experience gotten during the waiting time, even with the sponsoring employer. Hard reality

 

[ETA-GC]

I understand that. Key question is how does it work when you are using substituted labor (remember this labor was not for you). Can the experience gained at the employer prior to priority date of substituted labor be used. I haven't seen any guidance if this scenario is different.

Thanks for replying.

I don't think it can (and I've argued in the past that this is a rule that doesn't make sense to me).

In my case, I was on 2 TNs and most of the way through my first H1B before we filed for LC. As far as I know, none of the experience (3+ years) that I gained after joining the company could be used. It's not mentioned anywhere in the LC (just my 9+ years of experience prior to joining the company and my BS & MS etc. along with other prior relevant experience).

What really doesn't make sense is that, from what I can tell, I could have quit the sponsoring company and started the process over with a new company and in that case any / all experience that I had could now be used?

ETA

 

[dazzling]

I don't think it can (and I've argued in the past that this is a rule that doesn't make sense to me).

In my case, I was on 2 TNs and most of the way through my first H1B before we filed for LC. As far as I know, none of the experience (3+ years) that I gained after joining the company could be used. It's not mentioned anywhere in the LC (just my 9+ years of experience prior to joining the company and my BS & MS etc. along with other prior relevant experience).

What really doesn't make sense is that, from what I can tell, I could have quit the sponsoring company and started the process over with a new company and in that case any / all experience that I had could now be used?

ETA

What I have heard is that all experience prior to the date labor is received at the state agency is countable in your experience. It doesnt make sense to me that the experience with the current employer can never be counted. I know several guys who have joined one company in the past (their first job after graduation), they have always stayed with that same company and have got their GCs approved with them. How can that happen if what you are saying is true? No type of employment category can be approved with 0 years of experience, and if I apply your logic to these people who I know, they will have 0 years of countable experience.

I will call a friend and find out from him on this (he joined company A as his first job, never left them ever and has a GC).

Another thing I want to add, in my denial letter, the officer has created a table showing my total experience and he has counted the experience from the current employer until the labor received date at the state agency stamped on the approved labor application. If the experience from the current employer was not countable, he would not have counted it to show, how I fall short of Bachelors + 7 years of experience on 2/18/2003 (my labor filing date). According to him I have Bachelors + 3 years and 7 months as of 2/18/2003 (even though I have Masters + that much experience).

 

[TheRealCanadian]

No type of employment category can be approved with 0 years of experience

Where did you get this impression? It's perfectly legitimate for an LC to require only a degree and no experience.

If the experience from the current employer was not countable, he would not have counted it to show

Experience at the current employer is a bit of a sticky situation. My understanding is if you are already working in the same position as in the LC, you cannot count that experience, since it obviously isn't a requirement for the position. If that experience was required, then your employer wouldn't have hired you in the first place on a temporary, non-immigrant basis.

(EDIT: Fix quote formatting)

 

[dazzling]

Dazzling, I know this isn't helping your case, as I think we have all determined that once you get the evaluation of masters, 750b and fix the one year issue with employer you will get approved.

I know unitednations that in my case the issues are what you have pointed out and this is exactly what I have written down to talk to the attorney on Monday. I am not too worried about experience as I have two years of experience outside of the current company (25 months + few days to be exact). The key point is to get the education evaluator to write down what is in the labor. I have prepared a description of all the courses that fulfill this requirement and I have identified 33 credits in computer science related courses (both core and supplementary), 6 credits in thesis and another 6 credits for teaching a computer science course to the graduate class. The requirement is to have 12 core course credits, 12 supplementary course credits and 6 thesis credits. I think I have enough courses to satisfy this requirement. I am asking trustforte to do a course by course evaluation. I am also asking another company called MEI Services (http://www.meiservices.com) to do the same evaluation and will use either both or which ever one looks good. I am hoping that I will have everything ready by next Friday (i.e. 15th October). The letter was issued on October 1 so I will have sufficient time left after 15th if something does not go according to plan.

After this is done, I will be asking my company to file another labor for me. Also there is a possibility that my spouse can file her 140. I will have to ask them to find a labor for this. She has a Bachelors degree and 7 years experience till date, but then it depends on the labor that is found (I mean what is countable).

I have some more questions for you:
1. My 140 and 485 status has not been updated to denied. Will this happen at some point of time or will it not happen. I mean is the USCIS keeping the status open in case I file a MTR?
2. Once the MTR is filed, will the LUD / Status change in either 140 or 485 applications?
3. I am hoping that the original officer has 60 days from the time the case is given back to him. How much time does a Service Center usually takes from receiving the MTR FedEx to giving the case back to the officer - few days or a couple of months? Also is the process that the case has to first go back to the officer who issued the denial (or it depends on case by case basis). The USCIS website does not give complete information on procedure.

 

[TheRealCanadian]

see ---------------within text.

As an aside, please DON'T do this. It's a pain to read and impossible to quote. Ginnu does this and I hate it. Grrr!

 

[pralay]

I got the idea from ginnu.

Makes it easier when people ask many questions.

Your point is noted.

Though "ginnu" answers lots of important and useful information, most of the time I find them unreadable, hence skip them. On the other hand, it's diifficult answer too many questions without that kind of shortcut. Sometimes I make the answer in different color by selecting (high-lighting) the answer texts and then changing color from the menu above. Like this...

 

[dazzling]

see ---------------within text.

Thanks for the link to Pierres deposition .. I will read about it and keep forum members updated about my progress. Thanks a lot guys for invaluable advice I have received from everyone. I know I will have more questions for which I will not be able to find answers by doing a search on this forum .. and I will come back for advice. Thanks.

 

[dazzling]

Latest Info ...

After seeing the denial letter, the Evaluation Service MEI Services says that they will write:
1. Bachelors of in Computer Science, and
2. Masters in Management Information Systems
in my education evaluation.

My labor says M.S. in Computer Science or equivalent. I talked to my brother who is in Computer Science Department in a University (he is a undergrad student), and he says in his University both Computer Science and MIS are considered equivalent courses. The denial letter just says that I need to have Masters of Science with 2 years or Bachelors of Science with 7 years ... does not say anything about field of study ..

I have not been able to yet talk with the lawyer, but my company guy talked to his paralegal and he says the same thing. I am not so sure if I will be good on this.

Trustforte has not yet given a reply to me .. it looks like they have a Columbus Day holiday today (even though their office is open), but they may not give any response today.

 

[dazzling]

Evaluation is as follows:

1. Bachelor of Engineering degree in Computer Science & Engineering
This is equivalent to a four-year program of post-secondary academic studies in Computer Science & Engineering and transferable to an accredited university in the United States.
2. Master of Science degree in Management Information Systems
This is equivalent to a two-year program of academic studies in Management Information Systems and transferable to an accredited university in the United States.

I hope this is going to serve the purpose.

 

[dazzling]

Trustforte Evaluation

Here is the trustforte evaluation.
1. Bachelor of Science Degree in Computer Engineering
2. Master of Science Degree in Management Information Systems with 3.7 years of progressive work experience at the end of January 2003.

This does meet the labor requireemnt of either:
1. Bachelors Degree in Computer Science or equivalent with 7 years of experience. OR
2. Masters Degree in Computer Science or equivalent with 2 years of work experience.

I have sent all the papers to the attorney. She will read it tomorrow and lets see what she says. I am not sure if everything will work out. The reason I am saying this is because the company in their cover letter in the Original Filing said that I have a Bachelor's degree. They should have said that I have a Master's degree. Attorney says that she will deal with it as we go along. There are just too many inconsistencies in the original application.

She is not 100% hopeful though and she says that doing a new filing with the same labor has better chances. I am not sure about this. Under what circumstances can I file a new 140 using the labor for which 140 is already denied?

 

[dazzling]

There are many people on the boards who have filed the petition twice on the same labor (usually, this is done when information wasn't available at the time of appeal or as a defensive measure as mtr goes back to same adjudicator). Attorneys by their nature always give worst case scenario. You would have a bigger issue if the original evaluation stated your masters degree in something else and then new evaluation said management information systems without an explanation as to why the second evaluation is different. There have been people who stated they had xx amount of work experience and uscis sent rfe/denial stating they didn't have enough work experience on priority date. People would then submit letters for work they did in college to overcome the difference and they got approved.

I've been down this road with inconsistencies of the same bachelors degree. Eventually, it got approved. Note: my situation was different then your's.

In my case, there was no original evaluation. The attorney is from a reputable law firm and she says that chances that this will get approved are more then 50% but I should start thinking about a new filing. According to her, doing a new filing gives us the opportunity to explain things consistently. Anyway, I told her to do this and then wait for a couple of months and if this moves to the AAO, I will do a new filing. She says that is also a good strategy. In her experience, they usually do both at the same time (i.e. filing a MTR and also a new filing) and she says in her past cases she has been able to get both approved, but then nothing comes with a guarantee. I guess she also has her firm reputation to preserve. I am worried sick though, even though I am hoping for the best.

I have already made up my mind that if this does not work out, I will go back to my country. Given my educational qualifications and experience, I will not have any difficulty in finding a better job for myself then here. Actually it is very funny, my wife was joking the other day that I have degraded my MBA by equating it to a Master of Science in MIS. The only reason I first came to US was because I was fed up by the excessive amount of travelling I had to do on Business Visa and after marriage we both had a tough time with she tavelling to one part of the world and me to the other. But in the current scenario most of the BIG firms have set up offices back home and the amount of travelling has really reduced. I was talking to my old friend the other day who used to travel like me 5 years back, and he told me that he has not come to US in the last 2 years. What's the point of staying here and work for some stupid contractor on H1B, when I can become a Project Manager and get a good salary back home.

 

[dazzling]

Thanks for your words of encouragement unitednations. I know I can never thank you enough for all your advice. I will keep this thread updated with the latest developments in my case. Thanks again. GOD Bless.

 

[pralay]

In my case, there was no original evaluation. The attorney is from a reputable law firm and she says that chances that this will get approved are more then 50% but I should start thinking about a new filing.

When it come to predicting the outcome, lawyers are conservative in nature. They don't want to say something that can be interpreted at "assurance" or "promise" by their clients. That's the very basic of law business. As your lawyer is saying "more than 50%" chance, it's a very good sign.

Actually it is very funny, my wife was joking the other day that I have degraded my MBA by equating it to a Master of Science in MIS.

That's funny. It's difficult to compare between two different kind of degrees. Degree itself means nothing (some people use them as "tails" - longer it as, better it gets) - unless it provides you opportunities to achieve something in a particular country or area. If in a country (hypothetical) there are lots of opportunities in bachelor of arts, probably MBA or MIS would be considered "degrading" in that country. So, if a MIS degree can provide you a green card, why not have it.

The only reason I first came to US was because I was fed up by the excessive amount of travelling I had to do on Business Visa and after marriage we both had a tough time with she tavelling to one part of the world and me to the other. But in the current scenario most of the BIG firms have set up offices back home and the amount of travelling has really reduced. I was talking to my old friend the other day who used to travel like me 5 years back, and he told me that he has not come to US in the last 2 years.

In fact, for same reason I moved here, in USA. Because most of the engineer had to come here for 3 months, 6 months or 1 year anyway - living either in small hotel room or sharing apartment with someone else. So why not just living here myself.

What's the point of staying here and work for some stupid contractor on H1B, when I can become a Project Manager and get a good salary back home.

Makes sense. Definitely.

 

[dazzling]

MTR Filed

OK, my MTR/Appeal has been filed finally. The FedEx is on its way to Vermont right now - should be there in a couple of hours.

My lawyer has argued the case stating that USCIS erred in its decision as evidence was missing from the case. In the MTR she initially gave a background of the case and identified two pieces of missing evidence - my Education Evaluation and missing 750 Part B (My case was a labor substitution case). She argued that without 750 Part B (it was very clearly stated in the denial letter that this is missing from the filing), USCIS cannot make a judgment call on my educational qualifications and work experience (substituted labor). She has cited "8 C.F.R. §103.2(b)(8)" that states that where initial evidence is missing, the Service SHALL request the missing initial evidence. She goes on to state that USCIS was required by law to issue a RFE for missing evidence.

She further strengenthened this argument by citing the May 4, 2004 memorandum from William R. Yates, Associate Director, Operations, USCIS "because this initial evidence was missing from the original filing in this matter, the Service was required to issue a Request for Evidence for submission of these materials." She has attached all the sections of the law she has cited as exhibits.

Then she states that the petitioner (my company) had the evidence then and is providing the same now with MTR. She also attached an exhibit showing close link between MIS courses and Computer Science courses in US Universitites (like run by the same department, common courses etc). As my labor required "MS in Computer Science or equivalent", she has tried to establish equivalency of MIS with Computer Science. Of course this all goes with Education Evaluation from Trustforte, a affidavit from my company CEO for typographical error in my employment start date, my H1B approval notices, W2 for the current job etc.

Well, it is done now. Dont know what will happen, but I think I gave it my best shot. Last month has been really distressing and now that this thing is out of my hands, I am trying to relax a bit. I have been trying to convince my company to file another labor for both me and spouse as the last backup strategy. Lets see how that works out.

 

[dazzling]

looks good dazzling.

Is your lawyer sheepish that she didn't include the 750b for you? She's almost arguing her incompetence is the reason that 750b isn't there.

She is not the original filer. The original filer was the company guy who does not know anything. This is the new lawyer that I hired. We submitted a new G-28 for her.

 

[dazzling]

Received 290B tracking number

Check cashed yesterday and received the tracking number from the check copy. Shows a RD of 11/04/2004 and a LUD of 11/05/2004 on 290B. No LUD on 140. This is weird, my MTR reached them on 11/02 and they are still saying that the RD is 11/04. Anyways the last date for me was 11/04, so I am good with the filing.

I am hoping I will know something in the next 2 months one way or the other. Current 290B status says:

Receipt Number: EAC050255XXXX

Application Type: I290B, NOTICE OF APPEAL TO THE COMMISSIONER

Current Status:

Your I290B NOTICE OF APPEAL TO THE COMMISSIONER was received on November 4, 2004. We mailed you a receipt with information about processing. It is taking between 30 and 180 days for us to process this kind of case. We will mail you a decision as soon as processing is complete.

 

[dazzling]

UnitedNations,

Found a case in AAO where AAO decided against the beneficiary. This case the person had a 3 Year Bachelor degree and 3 years NIIT (this is a private training institute in India), "Post Graduate Diploma". USCIS and AAO refused to agree with the evaluator that the 3 year degree and this diploma is equivalent to a 4 year Bachelors degree.

Now this raises an interesting thing in my case. My MBA states "Post Graduate Diploma in Management". As per this judgment given in this case, it appears that for USCIS a diploma is not equivalent to a degree. Doesn't matter if the diploma is earned from a world class business school or a mom and pop school. They refused in this case aboe to agree with the evaluator and are likely to do the same in my case. So basically I am screwed .... What do you think?

Here is the link:
http://uscis.gov/graphics/lawsregs/admindec3/b5/2004/jan2004_02b5203.pdf

Also look at another case:
http://uscis.gov/graphics/lawsregs/admindec3/b5/2004/mar2604_02b5203.pdf