I-140 Denial

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Techie_ssp

Registered Users (C)
I-140 Denied a week ago.

Category -EB3/RIR

Education : 3 years degree in Computer Technology

Experience = 7 years (IT)

Evluation submitted - 3 years of degree + 3 years experience =1 year of formal education = total 4 years of formal education

Reason : According to INS the LC must specifically say that the experience will be excepted in lieu of formal education. MY LC in field 15 says the the education should be bachlor or equivalent.

What can we do ?

can we appeal ? How long usually it takes ?

Can we apply for another LC at the same time while appeal is still there.

My H-1 expires in March -2005.

Any help or insight would be greately appriciated.

Thanks all.
 
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hello Techie_ssp..
I am not sure if this Can help you..a freind of mine was in similar situation as you and 140 was denied...his lawyer was wise enough to reply with Better education evaluation process (in his case evaluation done at H1-B was better)..he re used that same evaluation for Re playing...I remember seeing James Miller suggestions somewhere in this forum ( not sure which thread) on similar subject.....so try your luck...

I missed this Part earlier.....My friends case is Approved in second attempt he is in 485 stage now
 
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So dependent, did you friends petition get approved with the new evaluation?

Do you know if he used experience as evaluation or course work in the H1 process.

Thanks.
 
hallo

this has been debated for a while in this forum

lca for h1 petition is different and LC for GC is different.

Your petition for LC should have mentioned that formal experieince is also accepted. A lot of factors depends on the LC petition.

My suggestion, you can refile with new evaluation, but question how long INS takes to give decision?

It may take 8 to 12 months and can say, approved or can say denied based on the previous decision.

From your definition of your LC, you can get approval from INS. Since you have sufficient time, you can file fresh LC covering all your facts.
 
I understand that I have enough time, but my question is can I appeal and apply for fresh LC at the same time? to cover me from both side ?

My lawyer is suggesting me that if I can get admission in any university in Masters based on my education and experience, he can show this to INS in the appeal and no question will be asked.It will get approve. Is that true ?

From what I understand, any university will tell you to evaluate your degree on document per document basis ( based on marksheets, subjects etc.)and then calculate your total credit based on that. And then it will suggest you to take few courses before you get admission in Masters.

Also, the admission process takes 3-4 weeks and I have to appeal in 2 weeks.

There is one more information about my education, qualifications. I am an MCSE which I've acheived before I applied for Labor. does that help? I know that Microsoft's certification is accepted worldwide, but do not know if INS accepts that.



Any input friends ?Thanks.
 
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Each of you have the same problem but there is no blanket answer as each of you may have different options based on your education. Here's the problem.

INS feels that "bachelor's degree or equivalent" means "bachelors degree or [foreign] equivalent" not "bachelors degree or the equivalent combination of experience and education". If I am applying for an LC for a person with a 3 year bachelors and I want to get to a 4 year bachlors degree, I always state "Bachelors degree or equivalent, NOTE: Employer will accept 3 years of college level education and 3 years relevant experience in lieu of the required bachelors degree".
This makes it clear to INS that the employer will accept a experience to get to the bachelors as long as the beneficiary has at least 3 years of college education.
 
Thanks Jim.

My employer is going to apply for new LC( Now we are going to mention what is suggested by you )


Meanwhile, do you think that when we appeal I should submit a new evaluation based on my 3 years degree and MCSE instead of 3 years experience =1 years of educatio? I don't know what else can we submit while appealing, I have a 1 year education certificate from a private institute where I have studied for my MCSE which I have not submitted before as my lawyer said that experience and education combination will make you equivalent of US degree. Is it possible to convince INS that Microsft, NOVELL, Cisco certifications are milestones in career in IT ?

Thanks for answering. I have only one week to appeal.

Thanks all.
 
Possible? Yes. Probably? I'm not really sure but that's the only way an appeal (or a motion to correct a service error) will succeed. Appeals take a LONG time. Frankly, I'd refile the I-140 with the additional evidence rather than appeal.

Ask your attorney to review the Labor Certification Manual by Fraggomen, et als before filing. Don't go by what I say since I have not reviewed your file or educational documents and I was answering your question without at thorough review of all relevant information.
 
Thanks for your quick reply Jim. I really appriciate it.

If we want to reappy, is that doable ? The question I am asking because I understand that when your first apply for your I-140, you submit your original LC. With the new application of I-140 how do we mention about the LC which is already submitted. Can we reapply under the same category even if it is denied once ?

One more question.

What are the chances of getting a fresh LC approved because of the downturn in economy.? I was really worried when I applied for LC for the first time but now I am really scared !



Thank you very muck.

Shivani , Would you be able to give your expert opinion as well ?

Thanks.

Techei_ssp.
 
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Why not do both - file I-140 again with new evidence and at the same time file another LC. If you have one year left on your H1B time, you will get an extension of H1 if your LC is pending after a year.
 
James Miller

I have high regards for your advice and suggestions.

Could you tell us clearly on one issue. If I-140 is denied because of 3 year degree, one has to reapply with appropriate wording in the labor certification. understood. but,

Could you please clarify, do the company have to issue the advertisement (for six months)again,
or
Company can file the Labor application (with the appropriate wordings as suggested by you) to the state govt based on the advertsiments released at the time of initial filing?

if second option is available then at least it will save a lot of time.

But is it a guaranteed route? or INS will comeback and say company should have conducted interviews and advertisements again for the applicant?
 
It depends on what was stated in the advertisement. If a company does a lot of GC processing, they usually have a standard ad that they run every month or two to cover all positions. That ad should reflect the minimum requirements for the position. Normally, these ads are very generic. If a specific ad was run, you may want to readvertise but again it depends on what the ad said.
 
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