I-140 Denied - Please Help

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reddy33

Registered Users (C)
My case very typical and never read such case in any forums.


My PERM was approved in Aug-2010 and filed I-140 in Nov-2010.
I have also filed for H1 extension in Dec-2010 while I140 was pending.
I will be completing 6 years by Jul-2012.
As per the USCIS rule, I should get H1 extension till Jul-2012 but my lawyer filed a 3 year extension and got approved through
May-2014. I am not sure, how I got 3 year extension while I140 was pending.

Now, last week the I140 was denied, do not the reason yet.

Now, the question is, Can I stay and work in US until 2014. Why I am asking the question is lets say if I decided that I do not want GC then I do not file an appeal for I140 and then how can I stay in this country beyond 6 years without GC process?

I have valid I-94 through May-2014.

Thanks in advance.
 
Sounds confusing

By the way, what was your reason for denial of I-140? Did you got through an attorney or did you do it all yourself?
 
reddy33 said:
My case very typical and never read such case in any forums.


My PERM was approved in Aug-2010 and filed I-140 in Nov-2010.
I have also filed for H1 extension in Dec-2010 while I140 was pending.
I will be completing 6 years by Jul-2012.
As per the USCIS rule, I should get H1 extension till Jul-2012 but my lawyer filed a 3 year extension and got approved through
May-2014. I am not sure, how I got 3 year extension while I140 was pending.

Now, last week the I140 was denied, do not the reason yet.

Now, the question is, Can I stay and work in US until 2014. Why I am asking the question is lets say if I decided that I do not want GC then I do not file an appeal for I140 and then how can I stay in this country beyond 6 years without GC process?

I have valid I-94 through May-2014.

Thanks in advance.
Click to expand...

The nonimmigrant H-1B is independent of the I-140 (EB-???) to a point and where they influence each other under AC21 it does get confusing....

http://www.uscis.gov/USCIS/Laws/Mem...anda/Archives 1998-2008/2008/ac21_30may08.pdf see especially page 5 of this memo where it talks about maximum 3 year extensions.

Discuss it with your lawyer.
 
Hi,

The reason for the denial is that my lawyer filed my I140 under EB3 professional category. I have Indian B.Sc (3 years) + M.Sc(2 years) + 7 years exp. However, USCIS did not agree on my Indian PG is equivalent to US Bachelor degree. My labor says US Bachelor degree + 2 years experience or alternative foreign equivalent degree. USCIS did not agree on PG.

Now, we are re-filing under "Skilled Worker" category.

My lawyer said I can stay until 2014 but I do not believe that and need experts help from this forum.

Thanks,
Reddy33
 
It's not over until it's really over...

http://www.uscis.gov/err/D2 - Tempo...ecisions_Issued_in_2010/Aug182010_01D2101.pdf

The above AAO Decision notes that:

"On the question of finality, the AAO finds that [the I-140] petition denial is not final as long as that decision may be reversed on direct appeal or certification. In other words, a denial is not a final decision for purposes of section 106(b) of AC21 until the petitioner waives the right to appeal, i.e., the 33-day appeal period expires without a properly filed appeal, or the AAO enters a decision on a properly filed appeal.

Additionally, as the AAO may ultimately reverse a decision that is certified for review pursuant to 8 C.F.R. 103.4, a certified decision is not final until the AAO enters a decision on the matter. See Immigration and Naturalization Service, General Counsel Op. No. 9 1-23, "Determination Of Date Of Final Decision In Denied Cases" 199 1
WL 1185134 (February 21, 1991).

Therefore, as the petitioner's 1-140 petition is currently pending before the AAO on certification, a final decision on the 1-140 petition has not been made and the beneficiary is entitled to an extension of stay in H1-B status for an additional year under section 106(b) of AC2 1, as amended."
 
BigJoe5:

Thanks for the information.

I am still looking for help on my case.

1. If I ref-file under "Skilled Worker", do you see any problem in approving I140?
2. If my re-file denies and my company won't start labor again, can I stay till May 2014?
3. Even it is USCIS error, do we need to inform to them saying that I am not eligible for H1 till 2014.

Thanks,
reddy33
 
reddy33 said:
Hi,

The reason for the denial is that my lawyer filed my I140 under EB3 professional category. I have Indian B.Sc (3 years) + M.Sc(2 years) + 7 years exp. However, USCIS did not agree on my Indian PG is equivalent to US Bachelor degree. My labor says US Bachelor degree + 2 years experience or alternative foreign equivalent degree. USCIS did not agree on PG.

My lawyer said I can stay until 2014 but I do not believe that and need experts help from this forum.

Thanks,
Reddy33
Click to expand...

Did the employer file in the right category in the first place?

http://www.uscis.gov/err/B5 - Membe...ecisions_Issued_in_2007/Dec052007_01B5203.pdf 3 yrs bachelor's and 2 yr master's from India = advanced degree for EB-2 as a valid Master's Degree Equivalent.

"In this matter, however, the petitioner is not relying on a combination of multiple lesser degrees or
education and experience to equate to a bachelor's degree. Rather, it is the petitioner's contention
that the beneficiary's education, culminating in the completion of a Master of Science degree from
the University of Pune, constitutes a foreign equivalent degree to a U.S. academic or professional
degree above the baccalaureate level."

See this AAO Decision for an idea of the complexity of evaluating foreign degrees mixed with work experience:
http://www.uscis.gov/err/B6 - Skill...ecisions_Issued_in_2007/Jun142007_12B6203.pdf


http://www.bibdaily.com/pdfs/AAO EB2 Wada.pdf
 
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