I-140 denied for abandonment-RFE response send to wrong service center

[kaustav_sg]

Hi,

I came to USA on July 2006 with H1B VISA.
My current emplyer filed labor EB2 category with PD Oct 26, 2009.
Labor got approved April 9, 2010.
I-140 was filed under regular processing to TSC on June 17, 2010.
My H1B VISA has been extneded to October 16, 2013 based on approved labor & pending I-140 & also summing up the days I was outside USA.

TSC issued RFE on my I-140 case on March 30 2011.

My lawyer send response to my RFE on April 25 2011 but send out to NSC and never realized till yesterday when we received I-140 denial notice from TSC as an abandoned case since RFE response was not send to them within 33 days.

After receiving this denial letter, my lawyer found out his mistake but due to his stupidity I'm going loose almost 2 years of my priority date & may be more years in GC queue.

My lawyer is telling there is an option to go with MTR but chances for the case to re-open is minimum & also will take 2.5 years to reopen based on his discussion with field officer.

He is now asking me to file for a new PERM case.

What are my best options right now?
Is there any way I can maintain the PD I have received?

Any suggestion/info/guidance will be highly appreciated.

Thanks for you time.

 

[BigJoe5]

Hi,

I came to USA on July 2006 with H1B VISA.
My current emplyer filed labor EB2 category with PD Oct 26, 2009.
Labor got approved April 9, 2010.
I-140 was filed under regular processing to TSC on June 17, 2010.
My H1B VISA has been extneded to October 16, 2013 based on approved labor & pending I-140 & also summing up the days I was outside USA.

TSC issued RFE on my I-140 case on March 30 2011.

My lawyer send response to my RFE on April 25 2011 but send out to NSC and never realized till yesterday when we received I-140 denial notice from TSC as an abandoned case since RFE response was not send to them within 33 days.

After receiving this denial letter, my lawyer found out his mistake but due to his stupidity I'm going loose almost 2 years of my priority date & may be more years in GC queue.

My lawyer is telling there is an option to go with MTR but chances for the case to re-open is minimum & also will take 2.5 years to reopen based on his discussion with field officer.

He is now asking me to file for a new PERM case.

What are my best options right now?
Is there any way I can maintain the PD I have received?

Any suggestion/info/guidance will be highly appreciated.

Thanks for you time.

8 CFR 204.5

(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.
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The petition was NOT revoked, you can retain the priority date IF it was "approvable when filed", "non-frivolous" and "meritorious in fact". So, as long as it was not bogus to begin with, a new PERM might be faster and would require showing that the denied I-140 was OK but for the lawyer's mistake but a Motion could also work and would take the same showing of evidence.