I140 RFE - Switch EB2 to EB3 ????

S

srinij77

Registered Users (C)
Hi gurus,

My category is EB2.
I got RFE on I140. Here it is.

1. It does not appear that your petition is approvable to classify the beneficiary as a second preference alien under section 203(b)(2) of INA because the Appliction for Labor Certification (Form ETA 750A) indicates the position requires less than five years of progressive work experience to go along with bachelor's degree. Section 203(b)(3)(A)(ii) appears to be appropriate classification. If you wish to change the requested preference classification, please place an "X" next to the sentence below. Also indicate the new preference number and classification that you are seeking and sign where indicated.


we gave the Ad in the daily news paper for 2 to 3 years of experience.
As I have 7 years of experience at the time of filing my labor, my lawyer applied on EB2.

As per RFE, it looks like need to switch to EB3.
Is it necessary to do that? Is there any way to give the justification to stay on EB2?
Please appreaciate your help and comments.
 
srinij77 said:
Hi gurus,

My category is EB2.
I got RFE on I140. Here it is.

1. It does not appear that your petition is approvable to classify the beneficiary as a second preference alien under section 203(b)(2) of INA because the Appliction for Labor Certification (Form ETA 750A) indicates the position requires less than five years of progressive work experience to go along with bachelor's degree. Section 203(b)(3)(A)(ii) appears to be appropriate classification. If you wish to change the requested preference classification, please place an "X" next to the sentence below. Also indicate the new preference number and classification that you are seeking and sign where indicated.


we gave the Ad in the daily news paper for 2 to 3 years of experience.
As I have 7 years of experience at the time of filing my labor, my lawyer applied on EB2.

As per RFE, it looks like need to switch to EB3.
Is it necessary to do that? Is there any way to give the justification to stay on EB2?
Please appreaciate your help and comments.
Click to expand...
Yes you must come down to EB3, else you are risking your 140!
 
yes here I am!!!

I ended up in same situation. LC advertisement was in EB3 category and I140 filing was in EB2. Always parents are right.....here LC process is the parent and I140 is the child process. So go with the parent you will be approved. However the retro will kill you.......I am going through it now.
 
rajudm said:
I ended up in same situation. LC advertisement was in EB3 category and I140 filing was in EB2. Always parents are right.....here LC process is the parent and I140 is the child process. So go with the parent you will be approved. However the retro will kill you.......I am going through it now.
Click to expand...

Is there any law to follow the LC advertisement?
Do you think lawyer made a mistake of filing on EB2?
 
it is not mistake but act smart...USCIS will catch

It is not mistake on attorney or employer's part. I would say they wanted to be smart. When an advertisement for EB3 is placed the salary requirement is around 60 to 70k. Employers are comfortable showing that kind of money. However for EB2 category salaries are unreachable by Desi Consulting companies....85K to 100k depending on the state.

So they go by EB3 in LC stage, and act smart to beat EB3 retrogression effect or cater to applicant's need by applying I140 in EB2. So the end result is the mess....atleast USCIS is giving an option to change now. if you change the category, your I140 will be approved after few weeks provided there is no 'Ability to pay issue'
 
Last edited by a moderator:
rajudm said:
It is not mistake on attorney or employer's part. I would say they wanted to be smart. When an advertisement for EB3 is placed the salary requirement is around 60 to 70k. Employers are comfortable showing that kind of money. However for EB2 category salaries are unreachable by Desi Consulting companies....85K to 100k depending on the state.

So they go by EB3 in LC stage, and act smart to beat EB3 retrogression effect or cater to applicant's need by applying I140 in EB2. So the end result is the mess....atleast USCIS is giving an option to change now. if you change the category, your I140 will be approved after few weeks provided there is no 'Ability to pay issue'
Click to expand...

Thank you for your information. I need to check the actual Ad about the salary mentioned.
Along with this RFE, got the ability to pay, my credential eval, experience proof for the skills mentioned in the Ad. I have to get the experience letter from my previous employer highlighting those skills.

I have wait and see what my lawyer is gonna say.
 
srinij77 said:
Thank you for your information. I need to check the actual Ad about the salary mentioned.
Along with this RFE, got the ability to pay, my credential eval, experience proof for the skills mentioned in the Ad. I have to get the experience letter from my previous employer highlighting those skills.

I have wait and see what my lawyer is gonna say.
Click to expand...

you have lot of work to do. Take a look at thread created by UnitedNations on Ability to pay issue. It looks like your attorney is incompetent based on the USCIS queries. I would suggest you to consider changing the attorney if your employer agrees. I did that and it was very smooth to I140 approval. If attorney doesn't do well with RFE response, be ready to see the denial of I140, I485, etc., There are lot of threads on these where I have participated in discussions.
 
rajudm said:
you have lot of work to do. Take a look at thread created by UnitedNations on Ability to pay issue. It looks like your attorney is incompetent based on the USCIS queries. I would suggest you to consider changing the attorney if your employer agrees. I did that and it was very smooth to I140 approval. If attorney doesn't do well with RFE response, be ready to see the denial of I140, I485, etc., There are lot of threads on these where I have participated in discussions.
Click to expand...

Thank you verymuch for your suggestion.
They got one week back. Today they faxed me.
How to approach the new lawyer?
Is there any problem with the existing lawyer if I do that?
 
rajudm said:
you have lot of work to do. Take a look at thread created by UnitedNations on Ability to pay issue. It looks like your attorney is incompetent based on the USCIS queries. I would suggest you to consider changing the attorney if your employer agrees. I did that and it was very smooth to I140 approval. If attorney doesn't do well with RFE response, be ready to see the denial of I140, I485, etc., There are lot of threads on these where I have participated in discussions.
Click to expand...

Thank you for your suggestion. I will post this RFE in Ability to Pay thread
 
Mine also similar

srinij77,
I do not want to scare you ,
mine also is similar to yours. I switched from EB2 to EB3 based on option given. But yesterday I received the 485 denial notice saying visa numbers are not available (meaning priority date is not current).
I am now waiting to hear from my attorney if this rejection because of retrogression is correct. Mine was concurrent filing in Jan 2004. I am confused if that date will be used OR the current date will be used for retrogression purposes. If we had filed with EB3 originally then they put it on Hold until it becomes current , I believe.
Senior members in this forum may help us out on this question.

LCstat
 
LCstat said:
srinij77,
I do not want to scare you ,
mine also is similar to yours. I switched from EB2 to EB3 based on option given. But yesterday I received the 485 denial notice saying visa numbers are not available (meaning priority date is not current).
I am now waiting to hear from my attorney if this rejection because of retrogression is correct. Mine was concurrent filing in Jan 2004. I am confused if that date will be used OR the current date will be used for retrogression purposes. If we had filed with EB3 originally then they put it on Hold until it becomes current , I believe.
Senior members in this forum may help us out on this question.

LCstat
Click to expand...

Thanks for sharing your info.
My lawyer responded to RFE and waiting to hear from INS.
Check my signature.
I also applied for my EAD renewal. I am keeping my fingers crossed.
As per your case, my case also gets denied.
If 485 denied, I think my EAD also gets cancelled. My 6 years are over and I am on EAD.
What should I do? Please suggest.

What is my status? Am I eligible to work?
 
srinij77 said:
Thanks for sharing your info.
My lawyer responded to RFE and waiting to hear from INS.
Check my signature.
I also applied for my EAD renewal. I am keeping my fingers crossed.
As per your case, my case also gets denied.
If 485 denied, I think my EAD also gets cancelled. My 6 years are over and I am on EAD.
What should I do? Please suggest.

What is my status? Am I eligible to work?
Click to expand...

My 6years were completed on OCT 2004.
Can I apply for 7th year H1B extension now to be on status and work?
 
srinij77 said:
My 6years were completed on OCT 2004.
Can I apply for 7th year H1B extension now to be on status and work?
Click to expand...
Your signature shoulws you applied in 2004. If that is the case you should be O.K. because at that time PD was current. Check with your attorney too.
 
tammy2 said:
Your signature shoulws you applied in 2004. If that is the case you should be O.K. because at that time PD was current. Check with your attorney too.
Click to expand...

Thanks tommy2 for your reply.
What you are saying is, even though if my 485 gets rejected bcos of "no visa numbers available.." still my EAD is valid?
 
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