I 140 denied under EB-2 category

A

amitshri

New Member
Hi all,

My labor was approved in Dec 2004. I-140 was filed soon after under the EB-2 category at NSC. I have a BE (4-year) degree from India and an MS from a university in the US.

I received a denial notification today from the USCIS.

The problem was noted on form ETA - 750. Box 14 has Bachelors degree as minimum requirement. Box 15 has Masters degree requirement. My lawyer says that USCIS is supposed to look at both the boxes to ascertain the minimum requirements. However, USCIS says, that since box 14 has only bachelors degree, the case does not qualify for EB_2 and hence denied.

We are planning to go through an appeals process. The lawyer syas that there were other cases in 2006 that had the same problmes and AAO has ruled that boxes 14 and 15 should both be read to find the minimum requirements.

I do not know if the attorney is right or if the appeals process would work. i also do not know how long does an appeals process take...

Can anyone tell me wht the right course of action would be.

1. Should i go through the appeals process? how long does it take?
2. can the ETA form 750 be refiled without changing the priority dates.?
3. If the appeal is denied, what are my options. Can i file in EB-3 category.
4. What is best way to maintain my priority date and still file in EB-2 category?


Would greatly appreciate it...

Thanks,
 
I have been told by my law firm that the appeal takes upto 18 months or so. But it might be worth in case you want to save your priority date.
 
Weird!

Its weird because my ETA 750 box 14 also same as yours, but I got approved for EB2. I receive approval in March 2007. See my signature for more detail.

Before I got approved for EB2, TSC send me an RFE suggesting that I should apply under EB3 instead. I reply with an agreement and a second I-140 filed for EB2. I reply in February 2007. Then 10 days later I got the approval notice by email and then the notice also come by mail and I found out its for EB2.

According to my lawyer, appeal can take up to one year. Previously, we also plan to appeal if they denied I-140 EB2, but they approve it. They approve the first one and the second one still pending.

I'm sorry about your case. Good luck!!

amitshri said:
Hi all,

My labor was approved in Dec 2004. I-140 was filed soon after under the EB-2 category at NSC. I have a BE (4-year) degree from India and an MS from a university in the US.

I received a denial notification today from the USCIS.

The problem was noted on form ETA - 750. Box 14 has Bachelors degree as minimum requirement. Box 15 has Masters degree requirement. My lawyer says that USCIS is supposed to look at both the boxes to ascertain the minimum requirements. However, USCIS says, that since box 14 has only bachelors degree, the case does not qualify for EB_2 and hence denied.

We are planning to go through an appeals process. The lawyer syas that there were other cases in 2006 that had the same problmes and AAO has ruled that boxes 14 and 15 should both be read to find the minimum requirements.

I do not know if the attorney is right or if the appeals process would work. i also do not know how long does an appeals process take...

Can anyone tell me wht the right course of action would be.

1. Should i go through the appeals process? how long does it take?
2. can the ETA form 750 be refiled without changing the priority dates.?
3. If the appeal is denied, what are my options. Can i file in EB-3 category.
4. What is best way to maintain my priority date and still file in EB-2 category?


Would greatly appreciate it...

Thanks,
Click to expand...
 
You applied the second I140 under EB2 with the same approved LCA ? Or did you start the labor process afresh for the second I140 ?

You mention that "I reply with an agreement and a second I-140 filed for EB2."

What agreement is that ? Did you have to send some justification to consider under EB3 ?
 
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i am also in the same boat, My 140 eb2 was denied stating the minimum req is only bachelors and as per my discussion with attorney he says that correct.
the unfortunate part is I was not given an RFE to downgrade to eb3.

I am filling an Motion to Reopen to consider under eb3 and also filing an new 140 for eb3 with same labor. the motion to reopen is maintain the labor status to get my h1 extended. Apparently, I you dont appeal or MTR your denial, you wont get H1 extended.

Note: These are my experience, talk to attorney for correct details.
 
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