Filed Concurrently but 140 being changed to EB3. Will 485 be sent back?

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dcmetro22042

Registered Users (C)
Guys:

As mentioned in subject, I filed concurrently before Sep end. However just found out that lawyer messed up and now my 140 EB2 is going to be changed to EB3. Will USCIS send back the 485 petition? With that both EAD and AP that I received be rendered useless? As you can understand I am quite shaken. Waited so many years to get here...and now cannot use EAD/AP...Infact might even have to wait many more years to get here (EAD/AP)!! Please advice.
 
dcmetro22042

According to your signature it appears that your I-485 was already approved. What the heck happened? If the USCIS already approved the I-140 AND the I-485 both for EB-2, how come you all of a sudden are being retracted and and changed to EB-3???
 
Well, in the Labor, lawyer mentioned requirement as B + 4 or Masters + 2 instead of BS + 5. USCIS sent RFE saying that we shall minimum as needed which is BS + 4 and therefore we want to change this 140 to EB3!
 
Since the problem occurred in the LC stage, I am not sure if a change can be done. Perhaps by redoing the LC and submit the new approved LC to the USCIS and tsubstitute that LC for the other to claim the September receipt date. I am not sure if that can be done, so you may need a good lawyer to help you with that one.
 
Lawyers like that should be banned from practicing law. This is absurd. He should know these details.
Are you from country which has EB2 affected by retrogression? If not, you should resubmit the LC. If yes, you have nothing to lose. Depending on your LC you need to answer RFE with a letter( written professionally, this is very important part) stating, that the technical error was introduced when submiting LC. The company requires BA + 6 and MS + 2 . Since no candindates were selected , technical error should not play the big role. bla bla bla, We would like USCIS assistance in correcting it since further recruiting efforts will be doomed... Well I am not the writer and you should get the idea.
Hopefully that helps...
 
I am from India..retrogressed. Filing another labor is totally out of question for my HR. I talked about PERM which was immediately shot down due to financial constraints. My lawyer just replied back (just got to know) saying that "they believed Masters plus 2 is EB2 and therefore they applied under it. If not, please change to EB3". Hope thats all he wrote and no mention to concurrent or 485. Guess I just have to wait and see what USCIS does now! :( Hopefully they dont cancel the 485...although with my luck, I am quite prepared for it now. Only thing that truly feel bad is that I have AP and EAD in MY HAND!! Its like salt on my wounds!
 
Sorry to hear that. What exactly USCIS has mentioned in the RFE, particularly about your 485 if they approve your 140 in EB3? I had a similar problem, however I got success in fighting in approving in EB2. But my case was stronger. When I applied EB2, visa number was current and EB3 was unavailable. USCIS has misunderstood that I had a 3-year BS degree. In I-140 RFE, they asked us to convert into EB3 though my LC requires BS+6yrs exp. They clearly mentioned that if they approve my I-140 in EB3 they will deny 485 and EAD application, because there was no visa number available for EB3 when I filed 140 and 485.

Therefore, if they approve your 140 in EB3, most probabaly they will deny all riding application 485 and EAD. Stay in H1, till retrogression relief comes in effect. If you have a MS+2 yrs experience at the time of LC applied, you have a good chance to win if you fight for EB2.
 
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It appears to me that something is going on between your lawyer and your company behind your back. Do they really want to keep you working there? Perhaps you should look for another employer...
 
bJorn: Can't look somewhere else my friend. Already on 7yr extension now. Once 140 is approved and 485 (not canceled or refiled and after 6 months) can I leave them. Will have to stick it out.

permlc: HR and Lawyer already given up and replied as well, as I mentioned before. USCIS did not mention anything with regards to 485 in the RFE I believe as the lawyer did not say anything to that effect. But he also told me that they shall cancel them...since they normally do.
 
Consider going to an immigration court. A judge can make a favorable ruling for you, overruling the USCIS decision to convert from EB-2 to EB-3. It cannot hurt to present your case to an immigration judge as a technical error made by your lawyer screwing you over completely.
 
bjorn: Without the support of my HR or the laywer (as they were employed by my HR), I do not stand a chance. Therefore, I cannot take that route unfortunately. Just hoping for a good luck right now. Just wishful thinking that even if USCIS does change my 140 to EB3, they dont send back 485 papers. Hoping for a miracle here. I have FP appointment on 11/23. If I dont get the 485 papers until then, should I go ahead with them?
 
Of course do the FP. If you do NOT, the USCIS will after 60 days consider your application abandoned and deny it automatically. Leave the door open by doing the FP.
 
Do your FP at the earliest, don't wait until 11/23. You can walk-in to ASC and ask for it and if they agree(most of the time they will agree) you can finish it.
 
Two Qs:

- What do I need to take?
- More importantly, just walk up any time of the day and tell them I need to get FP done earlier because??
 
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Required for FP

dcmetro22042 said:
Two Qs:

- What do I need to take?
- More importantly, just walk up any time of the day and tell them I need to get FP done earlier because??
Click to expand...


dcmetro, sorry to know about your situation. Lawyers should know that a simple mistake can ruin a person's life, they should be more careful.

I received my FP notice as I was moving. So, I moved, updated my address through ar11 and by calling the 800 number, then walked in to my nearest CIS location on Saturday, BEFORE the PF date on the notice. I took (as mentioned on the notice) that FP notice, EAD and another form of ID (DL).

They didn't ask much, they said it didn't matter if it wasn't the same location as on the notice, their system will update that.

Just tell them something, like you will be out of state for job related travel or something. They don't know what your current application status, they'll just concentrate on getting your FP done.
 
Thanks for the reply.

- Now, when the date for the scheduled FP comes, will they not be marking that as " No Show" ?
- Or will there system update that you've already done the FP?
- How fast is the USCIS website update that FP was done?
- Finally, what is the best day/time to visit them?
 
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