I 140 denied - Gurus, Need your Input

[hompath]

I am in my 7th year extension which expires in Jan 2005.
I140 RD Sep 17 2003
I485 RD Jan 21 2004
1 EAD Valid till Feb 28 2005

Gurus, I need your Inputs.

My I 140 has been denied due to Education Reasons. I have a 3 Yr Bachelor's degree ( B.Com ) and NIIT diploma and have been working for the past 9 yrs in I.T. out of which more than 6 years are in U.S.

Since my I 140 has been denied. What are my options.

My company said they would appeal but I am concerned about

1. what will be my status after Jan 2005
2. Can I stay in U.S. once I file my appeal.
3. Will I be able to work for the company.
4. Can I apply for 8th year h1-B extension or can I extend my EAD & AP.
5. Any idea how long appeals process takes.

Please provide your valuable inputs.
Thanks.

 

[mgr91221]

Sorry, I cannot help, but have a query,

Is this a new rule, will this rule effect 485 adjudication also??

I have 3yrs B.com and Computer Diploma and have 8+ yrs exp and I140 was apprvd in 2002.

 

[pralay]

Sorry, I cannot help, but have a query,

Is this a new rule, will this rule effect 485 adjudication also??

I have 3yrs B.com and Computer Diploma and have 8+ yrs exp and I140 was apprvd in 2002.

This not a new rule.

If the job requirement (the requirement on which LC is based on) considers only "4 years bachelor degree" and does not consider the combination of any "equivalent degree" + experience (this "equivalent" word is important), a beneficiary with 3 year degree cannot use that LC for his/her I-140.

It's all about how employer/employer's attorney frame the requirement for LC.

 

[pralay]

1. what will be my status after Jan 2005

If your employer cannot reopen your I-140, your won't be eligible to extend your H1-B beyond Jan 2005.

2. Can I stay in U.S. once I file my appeal.

Yes. You can stay as long as you have valid visa (H1-B).

3. Will I be able to work for the company.

As long as you have H1-B visa (or you have EAD, if I-140 and I-485 reopened).

4. Can I apply for 8th year h1-B extension or can I extend my EAD & AP.

No, unless your employer reopens your I-140.

5. Any idea how long appeals process takes.

Probably depends on the complexity of your (or your employer's) case. I have no idea about I-140 rejection, but for I-485 I saw cases where decisions were made within 1-6 months after appeal (and they all got approved).

 

[goodluck_140]

hompath,

Sorry to hear the news.

Please read my earlier thread that I posted:

http://www.immigrationportal.com/showthread.php?t=132026

Also, read my other responses to people.

In my case I had 2 years diploma and had a evaluation saying my degree is equivalent to U.S 4 year degree. In spite of this, I received an Intent to Deny saying my degree is not equivalent to US degree and also combination of degrees are not acceptable as it was not mentioned in the ETA form.

My attorney mentioned in the response saying 'Bachelors or Equivalent" should be read broadly and accept combination of degrees and also explained the education system in India and how it is different from US. If we have such a stringent rule, this would not be fair for many Indians as the education system is different and they should not be blamed for education system in their country which was designed by their Government and also U.S employers will not be able to employ many of such people because of the above education system.
blah..blah..blah..blah..blah..blah..

Also my attorney referred to an old case.....

Hope this helps you.

I am sorry to say this, In your case, if you didn't have "Bachelors or Equivalent" in your ETA-750(Col 14) then it might be a big problem. In my case, I had the word equivalent. So, my lawer was able to give more stress on this word and requested CSC to read it in a broad sense (i.e equivalent, the word should be able include combination of degrees etc.).

But you never know, what attorney have in their stock. Give a try, they might have some other point to fight for your I-140 approval.

If you need my attorney's contact info(who is in CA), please send me a private message, I will be very happy to send you that.

Good luck.

 

[goodluck_140]

goodluck_140, are you getting tired of me referring people to you yet?

BTW, did you get your EAD/AP yet? Time must be running out for you to consider h-1b 7th year extension.

Hi UN,

No, not at all. I am glad to help, atleast my case would give these people a little hope.

Yes, I got my EAD/AP. So, I am not planning for Seventh year H1B extension.

 

[mgr91221]

Hi All,

Thanks for all the input.

My question will it cause problems with 485 approval,. I140 approved in May 2002.

Please reply as I am nervous as the ETA does not say equivalent.

 

[mgr91221]

Thanks Unitednations, You really made my day.

 

[ram03]

1. what will be my status after Jan 2005

Since your labour was approved more than a year back, so ur eligible for one more year(8th in ur case) of extension. Try and apply for ur H1 extension using prem. processing($$$1000) just to keep ur status valid.
2. Can I stay in U.S. once I file my appeal.

You are legal to stay in US provided you have ur valid H1.
3. Will I be able to work for the company.
Since u have a valid H1, u can continue with ur job witout any problem.
4. Can I apply for 8th year h1-B extension or can I extend my EAD & AP.

Since u have a NOID in ur 140, dont use ur EAD & AP(which becomes invalid if ur 140 got reject in the appeal) hope u get approved without any problem.

5. Any idea how long appeals process takes.

I was in a similar situation two years back like what ur in today. my case was not concurrent. After I appealed, they approved my 140 and I applied for my 485 immly. So dont worry, it is just that we have explain to them abt our education system.

 

[mxc]

I checked out the link provided by unitednations. It is really scary. I am in the same boat as the guy in that link. Almost 6 years on H1 - I will complete 6 years in 12 days, haven't applied for 7th year extension. My attorney told me it is not necessary as I am on 2nd EAD/AP. I too have a bachelor's degree in engineering with 12 years of experience and my I-140 was filed in EB2 category citing over 5 years of progressive experience. After 19 months of applying I-485, for the first time, I am nervous after hearing these kinds of incidents of going back to approved 140 and revoking it. All along I thought if you have passed 180 days, managed to stay in similar job and don't have any problems with documentation you are safe. This is scary. I just bought a home 4 months back thinking I am safe. On hindsight I think my attorney could have filed in EB3 category as it wouldn't have mattered anyway. I don't think there was any benefit of doing it in EB2 as all the categories were current. Anyway, whatever should happen will happen, there's no point in getting worked up I guess.. let's see.

 

[sertra2002]

I'm going to make your day.

USCIS can revoke a petition at any time they feel there was error. One person I know of when they were approving his 485 they went back to his 140 and sent notice of intention to deny stating that combination of degrees was used and they had approved it in error. His lawyer fought and uscis denied the petition.

His 140 had been approved for over two years when this happened. Lucky for him and for you, there was a case that just got recently published and the outcome was that once a 140 has been approved and the beneficiary is in USA then uscis cannot revoke an approved 140. His lawyer used this case to get USCIS to approve 485.

This happened in the last month. Therefore, I would say you are in the clear since your 140 has already been approved.

unitednations,

I too read the thread, but from that it seems there are two sets of rules. One for residents of NY, CT and Vermont and one for rest of US residents. Whereas NY, CT and Vermont residents are safe after I-40 approved and they are in US, others are not ? Is my interpretation correct ?

Here I reproduce the paragraph from that post :

"There are two separate rules or laws because under the laws of the United States, the decision of the U.S. Court of Appears in a given circuit binds only the states within its jurisdiction. Accordingly, until the U.S. Court of Appeals in other jurdisctions agree with the Second Circuit in the future litigations, the law that will govern the USCIS in revocation of the approved I-140 petition will remain the BIA decision, In re Vilos from the perspectives of the USCIS.
Unfair to the people residing in the states other than New York, Connecticut, and Vermont? True, but that is the law."
Thanks,
serta2002

 

[clear485]

Unitednations...plz respond.....

HI UN,

I am scary by seeing this thread.... Attorney filed on EB2, but i have only Bachelor's degree(4 yrs equal..US)...plus I have 7 years of experience in computers....

But I read we should have progressive experience of 5 yrs in order to file on EB2.....

What does it mean the word "Progressive experience" ?

Is it too scary thing ? My I-140, EAD, AP has been approved one month back....

Thanks

 

[clear485]

Thanks UN

Thanks for response......

I have poor knowledge in immigration......
Every thread is scaring me here......
hummm.....

Thanks again UN for your moral support always.....

 

[rs74]

hompath,
My I140 was denied too on education equivalency reasons.
I had 3 year Bcom from India and 2 year Masters of IT from Australia.
After denial my lawyer filed Motion to Reconsider and not appeal.
He got another evaluation done from a more reputed agency (I dont know which) and than my I140 was approved after 2 months.
I suggest you file Motion to Reconsider as that is faster than appeal. Appeal can take 1 year

 

[hompath]

Thanks to Guru's for prompt reply.

My company will appeal for denied II40 . As per the company , current EAD and AP are no longer valid and after appeal EAD and AP cannot be renewed therefore
they will file for 8th year H1B visa extension. My company has mentioned to me that 8th visa extension is also a risk factor. If 8th year visa extension is denied then i have to leave the country.

Another alternative is to refile I140 using a substitute labor.
will i find a company that can substitute labor and file I140 / 485 in these times.

 

[rs74]

Gurus,

Is this statement by hompath true 'after appeal EAD and AP cannot be renewed'.
I filed Motion to Reconsider after I140 was denied and it got approved 2 months later.
I filed for my EAD renewal 2 months earlier. My wife's EAD got renewed but mine is still pending.
Will there be a problem in my EAD/AP renewal due to the earlier I140 denial ???

 

[sertra2002]

Gurus,

Is this statement by hompath true 'after appeal EAD and AP cannot be renewed'.
I filed Motion to Reconsider after I140 was denied and it got approved 2 months later.
I filed for my EAD renewal 2 months earlier. My wife's EAD got renewed but mine is still pending.
Will there be a problem in my EAD/AP renewal due to the earlier I140 denial ???

There is a big difference in hompath's and your case. His case is still in appeal, while yours has been approved. What he means is that for cases that are still in appeal, EAD and AP cannot be renewed. In your case ther I-140 is already approved after appeal, so there is no problem in renewing EAD / AP.