EB3 I-140 was approved as EB2 mistakenly

[Aug03]

This happened couple of years ago. While my original EB3 labor application was rotting in BEC, my company filed a new PERM labor in 2006.

The education requirement on my PERM application read masters degree (EB2) but also said that they would take BS(3 year degree) +5 years experience. 3 years degree + five years is not an EB2 qualified job requirement and I don't qualify for EB2 either (3 years BS + 1 yr PG diploma +14 years of experience). PERM was approved without any problems.

My company then filed I-140 in EB2 category. There was an RFE obviously at this stage, but for two reasons. One of my employers financial document was missing and the EB category was not right. RFE asked to provide missing document and confirmation to process the application under EB3 instead of EB-2 since I did not qualify for EB2. Both requests were responded in time and my I140 got approved - but guess what? It got approved in EB2 categroy!!

My lawyer said it was USCIS's mistake in my favor. Before July fiasco, my EB3 labor at BEC was approved with a PD of Aug 2003 and thus we decided to file concurrently using that labor.

Now my question is - is it too risky to interfile using my mistakenly approved EB2 I140 and EB3 PD of 2003? This combination makes my case current. Can USCIS deny my I485 based on the fact that they approved my I140 in wrong category?

Any insight is appreciated.

P.S. - My lawyer has been too busy with April H1-B filing to look into this matter.

Thanks

 

[nscagony]

You cannot benefit from a USCIS mistake. If you try to take advantage of the mistakenly approved EB2 without having it corrected USCIS can revoke your green card at any point if they ever find out (audit, citizenship application, etc). Google for these cases, they do unfortunately happen. Just ask USCIS to correct your I-140 and wait for your case to become current. Its not worth committing immigration fraud.