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

[dazzling]

Friends,

My I-485 application was denied on October 1, 2004 and I received the Denial Letter today. It says that my 485 has been denied because my I-140 has been denied. It states further that I cannot appeal this denial (for 485).

I talked to my company and they have not yet received the denial letter for my I-140. OK here is my case:
1. Labor filed in Philly. Labor still pending in Philly Backlog Reduction Center.
2. Company filed for 140 using substitute labor in EB2 category in March 2004. I have a bachelors degree in Computer Science and Engineering and an MBA in Information Technology. I have 3.8 years of work Experience as of Labor filing date. Labor was for EB2 category with Bachelors with 5 years experience or Masters with 2 years experience (explicitly stated in the job description in the approved labor).
3. LUD on 140 on 08/06/2004. Was expecting a RFE. Did not come. Had a scared one month.
4. Received FP notice for FP on 09/15/2004. Did FP. Thought everything was fine.
5. LUD on I-485 on 09/14/2004, 09/15/2004, 09/21/2004, 10/01/2004 and 10/04/2004. Status updated to FP received on 09/21/2004.

Received denial letter today for 485, company has still not got the denial letter for 140.

Both me and spouse have a H1B valid till October 2006, so we are safe and fortunately do not have to leave. My spouse was trying to change job also using her EAD and abandoning her H1B, which she did not do as her salary negotiations failed and I am thankful to GOD for that. Job is also OK and there are no chances of layoff or anything.

I think I am the victim of the famous Yates memo and some screwed up case officer was having a bad day in his life and he thought of screwing me (instead of sending me a RFE for questions that he had).

I plan to consult a good immigration attorney once my company receives the denial letter for 140.

People who are in the same boat, please PM me and we can discuss our scenarios together .. Thanks.

 

[nyte_crawler]

Did they update the online status before you got it in snail mail ?

 

[PremChopra]

sad to hear that...

Take guidance from unitednations and also check I-140 forum for the similar cases, lot of people have been able to get it approved after an appeal (I mean I-140).

 

[dazzling]

Did they update the online status before you got it in snail mail ?

No. The status still says received on blah blah date for 140 and FP received for 485.

 

[joyd]

dazzling,

Hope things work out for you. Definitely consult a good lawyer.

 

[dazzling]

unitednations .. please reply

Unitednations:

Some questions for which I have not been able to find clear answers:

my company has not yet received the denial letter for 140 in mail. I am not sure if I can apply to repoen it. I am assuming that I have 30 days from October 1, 2004 to Reopen it.

Questions:
1. When does the 30 day period start? From the date the notice is printed or from the date the notice is received.
2. If I am allowed to file a MTR, what happens to my EAD / AP / 485. Can they be reopened along with 140 MTR or do I need to wait for 140 approval after MTR to reopen them? From your sugnature it looks that I can reopen them only after 140 is approved.
3. Any estimate on how much time does it take for MTR to get approved? Do they give a new case number for MTR or do they use the same old case # to track it. Also can I track MTR progress online or will it go to the attorney only.

Any help by any one will be appreciated. Thanks.

 

[ETA-GC]

Do you think that maybe they feel the BS + MBA + 2.8 years of experience doesn't equal MS + 2 years experience (clearly you don't match the BS + 5 years experience requirement)...?

Assuming this is an IT job, presumably the intent was for applicants to have an MS in Computer Science (or equivalent) no? Hopefully you can appeal this but it seems quite possible that they wouldn't consider the MBA to be equivalent to an MS in CS even if it was oriented towards IT.

Alternatively, from what I understand, EB2 cases can be tricky as the USCIS needs to agree that the job actually requires an advanced degree (in my own case we've gone with EB3 even though I have an MS in CS since our lawyer didn't feel that the MS requirement could be justified).

I'm just speculating here -- hopefully you will get the denial information soon and hopefully you will be able to address the issues that the USCIS has with the application...

ETA

 

[tammy2]

dazzling

Why did expect an RFE ? You are well qualified for EB2 category. was it Abality to pay issue?

 

[ETA-GC]

If it is the eb2 , eb3 issue you shouldn't have any problem on MTR as you can request for them to file in eb3, or you can file a new application in eb3.

I don't want to sound negative but it seems possible to me that dazzling simply might not meet the requirements for the job as it was advertised regardless of whether he tries under EB2 or EB3.

See my earlier post. He clearly didn't (at the time he joined the company) have the BS + 5 years of experience and assuming that this is an IT (technical) position it seems possible that the MBA is not considered to be equivalent to an MS (in CS) so he might not match the MS + 2 years of experience criteria either.

Haven't some people been denied because they couldn't show that their advanced CS degrees from other countries weren't equivalent to an MS in CS (and I would have thought that most of these are far closer to an MS in CS than an MBA...)?

Alternatively, maybe the USCIS doesn't feel that an MS is a reasonable requirement for this job?

Dazzling even mentioned that he was expecting an RFE at the I-140 stage. I'm obviously not an immigration expert but this case definitely seems to be likely to be difficult...

ETA

 

[TheRealCanadian]

Iassuming that this is an IT (technical) position it seems possible that the MBA is not considered to be equivalent to an MS (in CS) so he might not match the MS + 2 years of experience criteria either.

This is a dangerous assumption to make. The exact requirements of the LC are controlling, so just because the position is an IT position does NOT mean that a CS degree is required. If the LC required just a Masters' degree than an MS in IT should be just fine. If anything, DOL and USCIS will be more amenable since the requirements are broader.

I'd wait and see what the exact reasons for denial were.

 

[peeved]

Very sorry to hear about this.

Better informed people have given you sound advice already. I know you must be going through some anxious moments right now. Please keep us updated when you get a chance.

I hope it all sorts out for you.

Good luck.

 

[dazzling]

I don't want to sound negative but it seems possible to me that dazzling simply might not meet the requirements for the job as it was advertised regardless of whether he tries under EB2 or EB3.

See my earlier post. He clearly didn't (at the time he joined the company) have the BS + 5 years of experience and assuming that this is an IT (technical) position it seems possible that the MBA is not considered to be equivalent to an MS (in CS) so he might not match the MS + 2 years of experience criteria either.

Haven't some people been denied because they couldn't show that their advanced CS degrees from other countries weren't equivalent to an MS in CS (and I would have thought that most of these are far closer to an MS in CS than an MBA...)?

Alternatively, maybe the USCIS doesn't feel that an MS is a reasonable requirement for this job?

Dazzling even mentioned that he was expecting an RFE at the I-140 stage. I'm obviously not an immigration expert but this case definitely seems to be likely to be difficult...

ETA

ETA,

Thanks for the response. Yes the Job is a technical job. The exact title of the job according to Labor is "Software Engineer / Computer Systems Analyst / Programmer". However, my MBA has a high concentration in Software (I have 41 credits in my MBA 5 more then what was required, and of these 18 credits are in in IT / Software related courses). According to me (and trustforte) if you have more then 12 credits in a masters course oriented towards a subject area, you are considered to be a masters in that subject area. (Yes, I have a strong concentration in Finance also but I think that is besides the point). I have recently learned (which actually has come as a shock to me), that my Education Evaluation was missed by the company when they submitted the application. According to them, they frequently "miss" it and get an RFE and correct it (a nice way of delaying the case so that the guy will stick longer, I guess).

Even I think that my RFE would have been for Education Evaluation / Education Requirements and yes, I was expecting such a RFE (not denial .. William Yates .. where are you .. I feel like ..... ).

Anyway, the shock is still sinking in .. but I have seen worse days and I know it will be over soon ....

Thanks everyone for the moral support. The only thing I would say for future applicants is that be careful with how you / your lawyer prepares your application.

 

[dazzling]

My EAD and AP are both approved as of May 26 and June 08 respectively.

see ----------in text.

If it is the eb2 , eb3 issue you shouldn't have any problem on MTR as you can request for them to file in eb3, or you can file a new application in eb3..

Can I refile with the same labor .. I thought I couldn't?

If you don't get 140 denial notice in time, you can still file 290b within 33 days and state that brief will come later. This will give you time to get the denial notice and devise strategy accordingly.

I think I will get the 140 denial letter .. if not, I will try to find out from the lawyer what can be done.

Also a couple of questions more:
1. Can I file another 140 while my MTR is open? My company is willing to file another 140 for me. They claim they will do this with the labor of another person for whom 140 was approved and he has used AC-21 to leave the job. I am not sure if this can be done at all? (all confused muddle created by a desi contracting company)
2. What happens if this one gets approved before MTR or if MTR gets approved before this one or if this one also gets denied?

Basically I am confused how the 485 works out if MTR is approved. Will I need to refile 485 (with a new date and also being non-concurrent will take more time, I guess), or the old one can be reopened preserving the old ND? Unitednations from your signature it looks to me that you reopened your 485. But my 485 denial letter states that this cannot be appealed. Did the letter say something similar for you?

I would rather file a new 140 (if it can at all be done), then do a MTR and wait for the application to go in a black hole and loose valuable years that I have left on my H1B. Maybe, one day my Philly labor will get approved and I can file with my own labor ....

 

[ETA-GC]

If the LC required just a Masters' degree than an MS in IT should be just fine.

I might be misunderstanding something but dazzling said he has an MBA in IT, i.e. a Masters of Business Adminstration which (again, I may be wrong here) isn't a technical degree that is going to help with fullfilling the requirements for a technical IT position.

I'd wait and see what the exact reasons for denial were.

Absolutely -- this is all speculation until the denial information arrives.

ETA

 

[ETA-GC]

However, my MBA has a high concentration in Software (I have 41 credits in my MBA 5 more then what was required, and of these 18 credits are in in IT / Software related courses). According to me (and trustforte) if you have more then 12 credits in a masters course oriented towards a subject area, you are considered to be a masters in that subject area.

This could be the key -- you may need to prove that this really is equivalent to an MS in CS (if they will reopen the case).

I believe you might be borderline on the credits situation -- at McGill (in Canada -- may not apply to the US) the "thesis" option required 6 courses (18 credits) *plus* a thesis, whereas the "applied" option (the one I did) was 9 courses for 27 credits.

Did your lawyer include transcripts with your case which highlighted all the CS courses that you took?

Again, this is all speculation at this point (although hopefully you will have a bit of a head start if this really is the issue).

Try to remain optimistic but you might want to prepare for the worst. Assuming that PERM finally starts up and that the USCIS really does get their backlog down to 6 months, it might not take too long to redo the LC and start the GC process again...

ETA

 

[TheRealCanadian]

a Masters of Business Adminstration which (again, I may be wrong here) isn't a technical degree that is going to help with fullfilling the requirements for a technical IT position.

Keep in mind that the requirements for the position are exactly what the employer wants them to be. There's nothing that automatically requires a technical degree for a technical position. If the LC is silent on the field of study then it really is irrelevant.

As an example, I have a BA in History but received two approved LCs as a Systems Analyst, since the ETA-750 required only a Bachelor's degree in any subject. DOL were more than happy to approve them, since the broader the LC requirements, the easier.

It all boils down to what the ETA-750A stated. This is an area that often trips up a lot of sloppy or inexperienced attorneys.

 

[hmd]

i think what realcandian is saying is most relevant and valid since i myslef have management degree which is 4 years after 10+2 . mine is eb3 and I140 is apporved in June.It all depends on how employer has advertised it and the whatever he has advertised it should match with DOL codes..

Anyway untill he(dazzling) finds out the reason for denial it is all speculation . one should hope that it is because of the education eval (since his company forgot to send the eval from trustforte) so that the MTR will be a smooth ride.

 

[ETA-GC]

Keep in mind that the requirements for the position are exactly what the employer wants them to be. There's nothing that automatically requires a technical degree for a technical position. If the LC is silent on the field of study then it really is irrelevant.

As an example, I have a BA in History but received two approved LCs as a Systems Analyst, since the ETA-750 required only a Bachelor's degree in any subject. DOL were more than happy to approve them, since the broader the LC requirements, the easier.

It all boils down to what the ETA-750A stated. This is an area that often trips up a lot of sloppy or inexperienced attorneys.

Sure, and I was initially only speculating that this was a technical IT position but dazzling confirmed this with his earlier reply:

The exact title of the job according to Labor is "Software Engineer / Computer Systems Analyst / Programmer".

I can't imagine that anyone would interpret this job to be asking for anything other than an MS/Phd in CS or equivalent (to qualify for EB2). It's not like they're looking for people with a Master's in Nursing or Microbiology. And, it's always possible that the USCIS doesn't consider this job to require an advanced degree at all.

Hopefully, either this isn't the issue at all OR they'll be able to show that the MBA is equivalent (but I think that will be an uphill battle).

ETA

 

[ETA-GC]

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.

I think we're all in agreement with the above and hopefully (if this is the issue) then dazzling will be able to demonstrate this for his MBA.

Also (as I added in an edit to my previous post), don't forget that the DOL / USCIS also has to agree with the requirements in the first place. It's possible that they feel that this was a position which should not have required an advanced degree at all. They can also deny applications if they feel that the position had requirements which were overly restrictive (say, if it required spoken French for no good reason), although I'm not sure if this would only happen at the DOL level...

When we did the LC for my job (I'm an AI programmer in the gaming industry), we could have tried for EB2 (I have an MS in CS) but we went the EB3 route because the MS requirement probably would have been tenuous at best (and I think this was a good call in hind sight). Of course, we did include my MS information along with my educational qualifications as part of the EB3 application.

On a related note, I think this is one of the main concerns with the pending PERM process for LC -- it might make things faster but because of the rigid categories into which job descriptions must fit, it will become increasingly difficult to claim that there is no US person for the job.

ETA

 

[TheRealCanadian]

I can't imagine that anyone would interpret this job to be asking for anything other than an MS/Phd in CS or equivalent (to qualify for EB2).

This requires no interpretation. The ETA750A will state explicitly what degree is required, and this is what controls things.

Let me go on a tangent - I've had the opportunity to write code (Pascal, Assembler, C, Basic, Java) for 10 years now, and I've worked with a variety of graduates with anywhere from a Master's in CS to no degree at all. I've found very little correlation between educational attainment and the quality of a programmer, which is reassuring to this BA holder. I subscribe to the James Gosling dictum that software development is not an engineering discipline or a science, it is actually a Fine Art and anyone without an MFA in programming is woefully undereducated.