Help/Advice needed I-140 denied as EB3 filed as EB2

[InMess]

Hi Guys i need some advice/help on my I-140 denial.

I have US masters and 4+years of US job experience and My I-140 was filed in EB2 using a Substitution labor which as the education/experience requirements of (14) Masters+1years experience or (15) Bachelors + 3Years Experience and it was denied without RFE saying the Labor certfication used is not suitable for EB2 as they say EB2 labor should be requiring "Masters or BS+5Years Exp", which makes sense.

So what are my options now

1. Can my attorney file an MTR and request the USCIS to consider mine as a EB3 case, if requested what are the chances of USCIS approving my I-140.
2. Once the MTR is filed to convert from EB2 to EB3, what is the present status of my 485/EAD/AP/FP
3. If the USCIS is okay converting from EB2 to EB3, will the same application's applied ealier for 485/EAD/AP/FP are valid or not?
4. My wife has used her EAD and she is doing a full time job, so now as my I-140 is denied and if an MTR is filed in next few days can she still continue the same job until the decision is made on the I-140 and 485.
5. My wife has an H1 also, so as she used her EAD(which came as my dependent) not with the company which hold's her H1, in this case what would be the status of her H1, can she quit her present job and do another job using her H1, is that H1 still valid.

Thank you all for your advices and help.

 

[manwithnoname]

If the job requirement stated in LC fails to satisfy the EB2 criteria despite your qualification, then you will be allowed to refile in EB3. Yes, please file an MTR ASAP. If filed on time, the I-485 wont have any impact; however, it will use the visa number from the EB3 queue instead. your wife can continue to work in EAD. However, if need arise (worst case) she can obtain her H-1B stamp from Canada / Mexico.

 

[runnerk]

EB2 Labor Substitution

Hi,

My case is simlar to you. I am not sure how it is being handled. Can someone suggest me based on the below information Please ? Thanks a million in Advance.


Employer filed the AOS by doing Labor Substitution under EB2 [ PD: April 2001 ]

Completed my Masters in March 2001 + Working since then till 2007 [Masters + 7 Years of Experience]

I-140 - Filed on July 12th' 2007 - Still Pending

I-485 - Filed on Aug 23-2007

EAD received in Oct-2007

AP received in Jan-2008

Any suggest on How/What will be the outcome with my case? Appreciate your helpful advisory.

 

[EricS]

Hi Guys i need some advice/help on my I-140 denial.

I have US masters and 4+years of US job experience and My I-140 was filed in EB2 using a Substitution labor which as the education/experience requirements of (14) Masters+1years experience or (15) Bachelors + 3Years Experience and it was denied without RFE saying the Labor certfication used is not suitable for EB2 as they say EB2 labor should be requiring "Masters or BS+5Years Exp", which makes sense.

So what are my options now

1. Can my attorney file an MTR and request the USCIS to consider mine as a EB3 case, if requested what are the chances of USCIS approving my I-140.

Yes and good chances of approval.

2. Once the MTR is filed to convert from EB2 to EB3, what is the present status of my 485/EAD/AP/FP

They stay denied until the MTR is accepted and the 485 is reopened. This may take anywhere from 1 month to 6 months.

3. If the USCIS is okay converting from EB2 to EB3, will the same application's applied ealier for 485/EAD/AP/FP are valid or not?

If MTR is accepted, then all applications become valid again.

4. My wife has used her EAD and she is doing a full time job, so now as my I-140 is denied and if an MTR is filed in next few days can she still continue the same job until the decision is made on the I-140 and 485.

No, she is not supposed to work on a denied EAD. She can go back to work once 485 is reopened.

5. My wife has an H1 also, so as she used her EAD(which came as my dependent) not with the company which hold's her H1, in this case what would be the status of her H1, can she quit her present job and do another job using her H1, is that H1 still valid.

Thank you all for your advices and help.

That H1 became invalid when she started using EAD. In order to activate it (I am NOT too sure about this part), she can either leave the country and re-enter on H1 or file for H1 extension/transfer. Once that gets approved, she can start working on H1.