Intend to Deny

H

hmpUS

Registered Users (C)
I got a NOID on basis of USCIS not considering my application in which EB category it was filled ( EB2).They are cancelling 140 which was approved two years back which results in disqulify of 485 automatically.
I have contacted couple of lawyers and know option like refiling in EB3 and going back to H1, But those options are not open because over to 6 years for H1 and present employer doe not have any Labor certification for me .

According to you gurus what might be solution / option for this scenario?

Thank you so much for your valuable feed back in advance.

RD April 2002
NOID Sept 2004
 
hmpUS said:
I got a NOID on basis of USCIS not considering my application in which EB category it was filled ( EB2).They are cancelling 140 which was approved two years back which results in disqulify of 485 automatically.
I have contacted couple of lawyers and know option like refiling in EB3 and going back to H1, But those options are not open because over to 6 years for H1 and present employer doe not have any Labor certification for me .

According to you gurus what might be solution / option for this scenario?

Thank you so much for your valuable feed back in advance.

RD April 2002
NOID Sept 2004
Click to expand...

I am sorry to hear this, I guess you can amend the class like EB2 to EB3 in your I-140. Search on I-140 forum you will find more info..

Also, can you share what is your educational background. Did your education evaluation mentions about US equivalent degree, if yes what is that?. Please share with us.
 
Thanks for your prompt reply . My education is BS in engineering equivelent to us with more than 5 years of experience.I know as per my lawyer that we can always ask to consider under EB3 but question is that I have changed employer after 180days of 485 and I guess this kind of issues should arries at 140 stage . I am confuse why they are asking at time of 485 when 140 has been cleared in EB2 two years back?
Also if needed any kind of document from sponsering employer won't be able to get at this time.

Thanks again for your help.
 
hmpUS said:
I got a NOID on basis of USCIS not considering my application in which EB category it was filled ( EB2).They are cancelling 140 which was approved two years back which results in disqulify of 485 automatically.
I have contacted couple of lawyers and know option like refiling in EB3 and going back to H1, But those options are not open because over to 6 years for H1 and present employer doe not have any Labor certification for me .

According to you gurus what might be solution / option for this scenario?

Thank you so much for your valuable feed back in advance.

RD April 2002
NOID Sept 2004
Click to expand...
hmpUS: Sorry for hearing this. Can you share who cancelled your I-140? I heard that the company cannot canacel your I-140 after 6 months. IC
 
I think you should look into your LC and also probably in your experience letters which support 5 years of experience. I think the issue is in the wording of Labor Petition rather than the I140 approval. This is really scary for most of us here on this forum as including me, have applied in EB2 category using 5 years of experience. Please post all details about your Labor and the reasons for the NOID and hopefully, you should definately get some good help from the forum members.

Once again, I am sorry to hear about your case and I sincerely wish that your case will be considered without much hassles.
 
You may benefit, if you/your petitoner is in New York, Connecticut, and Vermont

Go to this site http://www.immigration-law.com/
and read the following law's impact on your situation.....it may help you.

(this is posted in the breaking news archive section of this site). I have copied it below verbatim.

09/11/2004: State of Law on Revocability of Approved I-140 Petition

Under the Section 1155 of the immigration statute (INA), USCIS cannot revoke the approved I-140 petition unless the following conditions are met: (1) It has a good and sufficient evidence; (2) Notice of revocation is mailed to the petitioner (employer) and communicated to the alien beneficiary by the U.S. Secretary of State (3) before the alien commences the journey to the United States. Accordingly, the USCIS can revoke the approved I-140 petitions if the alien still resides outside of the U.S. by giving notice before the alien departs for the U.S.
Question remains "what happens if the alien is already in the United States?" At this time, there are two separate laws depending on the jurisdiction of the petitioner. In all jurisdictions (states) other than New York, Connecticut, and Vermont, the governing rule is the decision of the Board of Immigration Appeals, called In re Vilos, 12 I&N Dec 61 (BIA 1967) (http://www.usdoj.gov/eoir/vll/intdec/vol12/1692.pdf) , which states that the agency can revoke the approved I-140 petition if the agency have given a notice of revocation even if the alien is already in the U.S. on the theory that otherwise the approved I-140 for the aliens who were already in the U.S. would be irrevocable for good.
However, this BIA decision has no effect on the approved I-140 petitions for those alien beneficiaries who are already in the U.S. because of the decision of the U.S. Court of Appeals in the Second Circuit that covers New York, Connecticut, and Vermont on August 2, 2004 that for the aliens who are already in the United States, unless such notice was already given before the alien entered the U.S., the approved I-140 petition is not revocable. The name of the case is Firstland International, Inc. vs USINS (http://caselaw.lp.findlaw.com/data2/circs/2nd/036139p.pdf).
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. This has been a way of life in this country in legal business all along since in lots of cases, the courts in different jurisdictions have rarely agreed each other when it comes to the hair-thin specific rules and laws!
 
Check following text from USCIS Employer Information Bulletin:
http://uscis.gov/graphics/services/employerinfo/Bull14final110303.pdf

-----------------------------------------------------------------------
REQUIREMENTS FOR MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES (or the equivalent)
An alien qualifies for the Second Preference Employment-Based classification as a member of the professions holding an advanced degree (or the equivalent) only if:
1) The position to be filled by the beneficiary must require a member of the professions with an advanced degree or the equivalent.
2)The beneficiary has the credentials specifically required for the position.

Member of the professions include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as those working in any other occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

Advanced degree means an academic or professional degree beyond the baccalaureate.

Or the equivalent means the possession of a bachelor’s degree in the field, followed by at least five years of progressive experience in the specialty.

For a critically important discussion of “the equivalent of an advanced degree,” see the Memorandum dated 03/20/00 from the Offices of Programs and Field Operations clarifying EB-2 requirements. The Memorandum was published in the Federal Register on July 3, 2000, as an appendix to the notice published at 65 Fed. Reg. 41,093. In summary, it provides that an alien qualifying for EB-2 must have a master’s degree, the foreign equivalent, or a bachelor’s degree plus five years of progressively responsible experience in the specialty. Correspondingly, the position on which an EB-2 petition is based must require an advanced degree or the equivalent. Specifically, blocks 14 and 15 of the ETA-750 supporting an I-140 for EB-2 classification must specify that the position require either a master’s degree or bachelor’s degree (U.S. or foreign equivalent) followed by at least five years experience in the specialty. If “progressive” experience is not specified, it should be clear from the description of job requirements that a person would qualify for the position only if the post-baccalaureate experience was progressive. A request for evidence or a notice of intent to deny may be required to obtain evidence clarifying this issue. Note also that, although DOL accepts a bachelor’s degree plus 3 years’ experience as equivalent to a master’s degree, this does not satisfy the EB-2 requirement.
-------------------------------------------------------------------------
 
Last edited by a moderator:
EB2 filers watchout !!!!!!!!

Hmpus..Sorry to hear about this.. A few questions... Did you meet 5 year criteria when your LC was filed to apply under EB2 category....
Were those 5 years industry experience ... If yes, I see no reason to deny... Also i guess you dont have a fallback option since the appellate court ruling covers NY, CT and VT states that 140 will not be revoked...

As an option, I suggest contacting a very good attorney to reply to NOID and to evaluate your options right now...At least thats what I would do !!!

Again, this is something for we Eb2 filers to watch out
 
Last edited by a moderator:
Thank you so much Guys for sharing your valuable knowledge. To Lost Batmn .
I am in NY only in that case can I use what ever laws are you talking about?
I tried link which you posted but could not open some how. Can you mail me in detail of it ?


THANKS TO ALL
Will keep posting my updates.
 
My attorney argued on the basis of the links given by Lost Batman

Based on the recent decision Firstland International v. INS, 03-6139 (2d Cir., 8/2/04) , details given by Lost batman above my attorney argued and won my case.

Have a good attorney . The second Circuit court decision case details are posted on Murthy.com and also you can go to Google and search for 03-6139 . You will get details.

Send your phone number to ryerragu@yahoo.com. I can call you tonight if you want(I am in California).
 
Thanks to United nations.

I am not an active user of the Forum, but I am very much thankful to United Nations for his moral support and help when I was in bad time because of the USCIS.
 
hmpUS, is there any update in your case? The reason I am asking is I am in similar situation - filed in EB2 and have only bachelors degree in engineering. MY LC clearly states that Masters is the requirement but alternatively bachelors and five years of work experience will be accepted and in the supporting documentation it clearly states that I have 5 years of progressive work experience. My 140 got approved in 2 months back in Apr 2003 and my 485 was filed in Mar 2003. 7th year H1 extension is not an option for me. So, I was just curious to know what happened with your case so that I can be prepared. I checked with my attorney and he says, it is not a problem. I am sure he hasn't come across this situation. So, I would rather get some second opinions from this board than just to take his words and be complacent. Thanks.
 
Hi hmpUS,
I am in similar situation as mxc far as LC, Qualifications and Experience are concerned and I have applied in EB-2 Category. Do you have an update in your case. And thanks for sharing your info with all of us.
 
Hey Guys,
Just wanted share experience . So far nothing happened my Lawyer has replied to that NOID and USCIS got it today.I know some of you are more curious to know about it.What I know from this experience is that not every one who files under EB2 and have BS + 5years are going to get something like this but this is rendom for some kind of audit and only unlucky guys gets this.I know couple of friends of mine who has same credential got approved long time back.Once you get this type of NOID then is big trouble.
I am waiting for USCIS reply count down from today onwards and keep you guys update.

Thanks for all your suggestions and help
 
Thanks hmpUS. One of the most important things to check I guess is if the LC mentions 'Progressive' work experience in box 15. I checked mine and it does not say that - just says "Alternatively will accept Bachelor's or equivalent plus 5 years of work experience as equivalent to Master's degree". However in the supporting document for I-140, there is a paragraph on Beneficiary which explains my qualifications and mentions that "Mr ABC obtained a Bachelor's degree in XYZ Engineering from the University of DEF in 19ZZ. In addition to his academic qualifications, Mr ABC has over ten (10) years of professional and progressive work experience."

That's the only place I have seen "progressive" mentioned.

Well, I don't know if this would suffice. I am just keeping my fingers crossed and if it is really a random check as hmpUS mentioned my case does get pulled over.
 
You must log in or register to reply here.
Top