I40 RFE EB2/EB3 Issue, need help

[rajaabhi]

Hi there,

I recieved an RFE asking if I need to change my classification from EB2 to EB3. This resulted because in QH4 we said masters is the minimum requirement. And in Q H8 for alternative we stated "Any suitable combination of education, training or expericne". INS is say that it does not appear it was an EB2 case and asked if we desire to change it to EB3 category.

We prepared a response documenting our entire recruitment steps where in each advertisement we clearly asked for Masters. We also reponded to DOL Audit where we clearly stated tht we rejected 11 candidates because they had Bachelors degree.

My question is having such a consistent pre-filing proof, my lawyer insist on putting a line in the main letter saying "If and only if the explanation is not sufficient then we will change it to EB3".

I am not sure about that line. What do you guys think
1. Probability of it being accepted as EB2 or EB3
2. Should I include that line

Any opinion or advise will be a big help.

Thanks

 

[TXasian]

Your case will clearly be an EB3 case, if the labor certification advertisement had a provision to accept suitable combination of 'education, experience, etc'. Following combinations qualify for EB2:
- Masters degree alone. No alternative combination involving Bachelors degree.
- Masters degree+3yrs of experience or Bachelors+5 yrs of experience
- Bachelors+ 5 yrs of experience, alone.
Hope this helps.