Can we convert EB2 to EB3 after a I-140 RFE

E

enggr

Registered Users (C)
My Dear friends/attorneys,
Is it possible to request an EB2 to EB3 conversion after a I-140 RFE?

I finished my 4-year engineering course in year 2000 and started working with the company which I got recruited. My degree has year 2002 due to the last supplementary exam. My attorney put the graduation as year 2000 and counted 5 years of experience from there (Because my degree has 2 dates on it). INS is counting only 3.5 y ears of experience after degree completion.

I think the only way I can survive this RFE is to request for an approval under EB3 category. The unlucky part is I didn't get that as an option in the RFE itself (which many people got).
The paper ad as well as labor certification is not specific about "progressive experience" or experience after degree completion. The ad just says Bachelors degree with 5 years of experience.
Please advice me how to respond to this RFE in a safe manner.

EB2 PERM : Aug 2006.
EB2 I-140 (REG) : Nov 2006.
EB2 I-485/ EAD : July 2007.
EB2 I-140 RFE received : Sep 2007.

RFE
---------------------------------------
"Please submit evidence which establishes that the beneficiary had at least five years of experience as a software engineer after receiving his bachelor's degree but prior to August XX, 2006. Since your evidence does not indicate that the beneficiary received his bachelor's degree until 2002, this does not appear possible.
If the beneficiary received a degree prior to 2002, please submit a copy of that degree."
---------------------------------------
 
This is a very general question - let me think: You have the option of converting from EB2 to EB3 only if you qualify for the job description in the LC but the job description itself fails to meet EB2 requirement. This may not be enough; experts - please add here.
 
Will it mostly fail?

manwithnoname said:
This is a very general question - let me think: You have the option of converting from EB2 to EB3 only if you qualify for the job description in the LC but the job description itself fails to meet EB2 requirement. This may not be enough; experts - please add here.
Click to expand...

Thanks for the serious look into the problem, manwithnoname. You mean to say the job description itself is not compatible with EB2? (Paper ad says, F/T MS Degree or equivalent in Engineering field OR BS Degree or equivalent with five years ex) I do have bachelors degree and 5 years of experience. So it that enough to save the LC? Can it be just a matter of myself falling short of progressive experience in I-140? I am anxiously waiting for the answer from you as well as other gurus.
 
My I-140 got denied after RFE response. Which option should I pick?Appeal Vs new 140?

Friends/Gurus,

My I-140 got denied after the RFE response. In response to the RFE in September my lawyer responded to the RFE in November and the result came early this month (march 2008).
In the RFE response in last November my lawyer told USCIS that the category was marked wrong as EB2 where the case should be actually under EB3.
USCIS denied the application saying that application cannot be approved under EB2 and request for EB3 cannot be entertained at this point.

The following are the words from USCIS denial notice.



"The petitioner indicated that it had made an error in marking the petition form and that the petition should be considered one requesting the beneficiary's classification under a different section of law. However, since the petition was filed for second-preference classification and was initially adjudicated on that basis, USCIS will not at this stage consider it for some other classification.
In accordance with a USCIS announcement dated on May 23, 2007, the petitioner may elect to file a new petition on the beneficiary's behalf requesting a different visa classification but supported by the instant labor certification.(A motion making this request would be denied.) If the petitioner elects to persue this option, it should include a cover letter which explains the request, include a copy of this denial notice, and clearly report that the original labor certification is with LIN XXXXXXXXXX housed in AXXXXXXXXX. "


Also mine and my wife's I-485 got denied on the same day. In the denial notice of I-485 USCIS has mentioned that "The regulation does not provide for an appeal to this decision."

We are planning to file a new labor certification by end of this month as the current one is 99% a gone case

As you all know I was trying to save this application to save my wife's EAD.

Please help me with one of the options below.

Regarding my rejected I-140 I have two choices as per USCIS and my lawyer. Either of them should be filed 33 days from first week of march. Doing both of the below options at the same time will result in automatic rejection of both

1) Appealing the decision
Pros: My wife gets a chance to win her EAD back which is a big win for us
Cons: USCIS has indicated in the rejection notice that they are rejecting the I-140 because it does not qualify for EB2. they added that our request for converting it into EB3 cannot be entertained at this moment of time. So chances of winning the appeal is small compared to filing new I-140 as per my lawyer

2) Applying new EB3 I-140
Pros: Chances of getting an approval under this new EB3 I-140 is more compared to appealing the old EB2 application (the old application also includes and the request to convert EB2 into EB3)
Cons: Definite loss of my wife's EAD. Also since the labor is on Aug 2006 they have a common expiration date of Jan 2008. All labors from June 2007 (somewhere around that time) expire 6 months of the approval date and I-140 within that 6 months only will be considered for processing. Since we have passed the Jan 2008 period my lawyer is saying the new I-140 can also get rejected. the only argument we can place is, the processing time taken/length of old I-140 processing and the suggestion given on old I-140 denial notice dated march 1st week.

I am wondering whether we can do an MTR (Motion to re-open on the old application). This option is not mentioned by USCIS or lawyer. I am wondering whether this option will eliminate the appeal/new I-140 application within 33 days previlege

. My answer to my attorney regarding the next course of action depends on your advice(s) very much.

Thanks in advance and I really appreciate who posted replies to my questions earlier.

Enggr:

Labor approved 2006 Aug EB2
I-140 applied 2006 Nov EB2
I-140 RFE 2007 Sep
RFE response 2007 Nov
I-140 denied 2008 Mar
 
1. Labor is for EB2. You clearly do not qualify for this. So filing EB3 I-140 will not help.

2. MTR is only prolonging the inevitable. (Rejection). Also cannot file for another I-140 on same labor if MTR is in progress on same Labor.

3. Best thing to do is file another labor and proceed.
 
I'm doing another labour but also want to do the best for old application

worrieddude said:
1. Labor is for EB2. You clearly do not qualify for this. So filing EB3 I-140 will not help.

2. MTR is only prolonging the inevitable. (Rejection). Also cannot file for another I-140 on same labor if MTR is in progress on same Labor.

3. Best thing to do is file another labor and proceed.
Click to expand...

Hi worrieddude,

Thanks for the correct advise.
I already started the process for new labor certification as the current one is totally messed up.

Since another I-140 is not possible if MTR is on progress I'm ruling out the MTR option and filing another new I-140. I know that it may not go through due to the EB2 labor, but I think I can try for that 1% chance.
The problem I'm worried with this is all old labors have a common expiration date of Jan 2008. So will that be a problem in filing new I-140? Will they reject it right away saying that labor is expired?
In the I-140 rejection notice USCIS has mentioned that In accordance with a USCIS announcement dated on May 23, 2007, the petitioner may elect to file a new petition on the beneficiary's behalf requesting a different visa classification but supported by the instant labor certification.(A motion making this request would be denied.)

Will that help me to override the jan 2008 common expiration date of labor. Also the common expiration will apply only if you didn't apply any I-140 I guess. Since e already applied one I think the labor won't expire

Please advice. I such a value for me :)
 
You cannot file another I-140 without attaching documents to show that you previously filed I-140 on the same labor (only then USCIS will accept the case. Otherwise this will get rejected right away). The 6 months rule is in effect so you will need to do the above.

The problem is that if you attach the previous document, the new filing will get rejected again (the officer will look at the previous filing to determine why that was denied).

So better to start from the labor certification. This time take care to count the experience gained after 2002. You may have to change the job (since current experience obtained on the job does not count towards 5 years progressive experience).

All the best.
 
For worrieddude

Worrieddude,

My first I-140 was rejected in NSC in 2007 for EDUCATION. We applied for two new I-140s (EB2/EB3) in TSC. I got an RFE for my EB3 asking if I would like to change preference classification to EB2.

Quoting you:
---------------------------
The problem is that if you attach the previous document, the new filing will get rejected again (the officer will look at the previous filing to determine why that was denied).
========================
I disagree with you! If my first I-140 denial decision would influence the second and third I-140, why did they not deny the EB3 case straight away? Is it because TSC is more lenient?

Many people who have had their I-140s denied in NSC have applied the second time using the same labor and have been approved.

Cheers,
 
din21 said:
Worrieddude,

My first I-140 was rejected in NSC in 2007 for EDUCATION. We applied for two new I-140s (EB2/EB3) in TSC. I got an RFE for my EB3 asking if I would like to change preference classification to EB2.

Quoting you:
---------------------------
The problem is that if you attach the previous document, the new filing will get rejected again (the officer will look at the previous filing to determine why that was denied).
========================
I disagree with you! If my first I-140 denial decision would influence the second and third I-140, why did they not deny the EB3 case straight away? Is it because TSC is more lenient?

Many people who have had their I-140s denied in NSC have applied the second time using the same labor and have been approved.

Cheers,
Click to expand...

Nothing to do with TSC being more lenient. If your case is not filed properly it will get RFE/denial. I have been through this mess numerous times. Check my signature.

I bet that you filed the I-140's when 6 months had not passed after July 2007 so the labor was still valid. So you did not have to prove validity of labor and happily filed the I-140.

Try doing the same thing now, the application will be rejected that the labor is expired. Only way for application to go through at this time is to attach evidence that an I-140 was filed on the labor and the labor is still valid after 6 months.
 
worrieddude said:
You cannot file another I-140 without attaching documents to show that you previously filed I-140 on the same labor (only then USCIS will accept the case. Otherwise this will get rejected right away). The 6 months rule is in effect so you will need to do the above.

The problem is that if you attach the previous document, the new filing will get rejected again (the officer will look at the previous filing to determine why that was denied).

So better to start from the labor certification. This time take care to count the experience gained after 2002. You may have to change the job (since current experience obtained on the job does not count towards 5 years progressive experience).

All the best.
Click to expand...

I think my attorney will be filing new I-140 after attaching the denied I-140 along with.

Another question. My employer put me in touch with another attorney and he said if he was supposed to handle the case he will file an appeal for the old I-140 and also file a new I-140 under EB3. When I asked how can we do appeal on the old EB2 I-140 and file another EB3 I-140 he said the law only restricts to file multiple I-140 under same category. Since EB2 and EB3 are under different category we can do appeal on old I-140 and file a new EB3 I-140 at the same time.

Please advice me whether its possible or not
 
din21 said:
Worrieddude,

My first I-140 was rejected in NSC in 2007 for EDUCATION. We applied for two new I-140s (EB2/EB3) in TSC. I got an RFE for my EB3 asking if I would like to change preference classification to EB2.

Quoting you:
---------------------------
The problem is that if you attach the previous document, the new filing will get rejected again (the officer will look at the previous filing to determine why that was denied).
========================
I disagree with you! If my first I-140 denial decision would influence the second and third I-140, why did they not deny the EB3 case straight away? Is it because TSC is more lenient?

Many people who have had their I-140s denied in NSC have applied the second time using the same labor and have been approved.

Cheers,
Click to expand...

Hi Din,
Thank you looking into my post and advising my case
I am so glad that you are sharing your positive experience.
Your statement that you filed two new I-140 is arousing my curiosity. Did you file the second one after the result of the first one or you did both of them parallely?

Another important fact you can help me with is do you think
I can file my case in TSC now even though every thing else was handled in NSC before. My employer is in CA and that was the primary reason they applied in NSC. Can we change the service center now?
 
MTR/Appeal

enggr said:
I think my attorney will be filing new I-140 after attaching the denied I-140 along with.

Another question. My employer put me in touch with another attorney and he said if he was supposed to handle the case he will file an appeal for the old I-140 and also file a new I-140 under EB3. When I asked how can we do appeal on the old EB2 I-140 and file another EB3 I-140 he said the law only restricts to file multiple I-140 under same category. Since EB2 and EB3 are under different category we can do appeal on old I-140 and file a new EB3 I-140 at the same time.

Please advice me whether its possible or not
Click to expand...

Thanks for clarifying Worrieddude :)

Enggr,

We did exactly the same thing. When my EB2 I-140 was denied the lawyer filed for MTR/Appeal. After a few weeks of filing the MTR we filed for both EB2 and EB3 using the same labor.

Which service center did you file at? From my experience, filing MTR/Appeal is a total waste of time and money (unless your company is paying). MTR/Appeals take >1year and most of the time get rejected again (the lawyer makes money though).

The best strategy is to file EB2/EB3 in Texas using the same labor. I'm not sure which is your SC of jurisdiction. TSC is more flexible, NSC has rogues working there.

Good luck and keep us posted.
 
Please contact an experience attorney as to whether you can still file in TSC if your SC of jurisdiction is NSC. Before July 2007 (I was lucky) it was possible to file in any SC so I filed in TSC even though I live in CA.


Yes, I filed the second EB2 after the first EB2 was denied. You cannot have two I-140s in the same category at the same time.

We staggered the EB2 and EB3 so that they would not clash.

Hope this helps.
 
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