NSC I-140 revoked after RFE, next steps ???


New Member
I need some urgent advise for potential steps after I-140 denial in my case. Please bear with me for some context.
In July'09 , I received a RFE on one of my two approved I-140.
This I-140 in question, was related to PERM labor and was approved in Jan'07 and had the PD of Oct' 06.
I had another I-140 pending approval at that time which was related to Pre-PERM/RIR labor and which had the PD of Oct' 04.

In July-Aug'07 window of 485 filing, I filed my 485 application referencing both I-140's ,
the reason we referenced non approved I-140 because it had an ealier PD.
The Oct'04 (earlier) PD I-140 was subsequently approved in Oct'07 just after few short months of 485 filing.

Both Labors/I-140s were in EB2. Now the RFE was due to 3 year degree , USCIS argued that they will not accept my NIIT diploma towards a 4 year degree
althougth all other times they did. Anyway we responded to RFE , the lawyer made some arguments with an additional Educational evalaution,
also agreeing to the possibility of shifting of I-140 from EB2 to EB3. Last week I received a very detailed response both in breadth and depth
on that RFE, totalling ten pages and it concluded with the revocation of I-140 in question. They also denied the possibility of shifting to EB3 from EB2.
We do have the option to appeal.

Today, I had a meeting with attorneys and my company's HR director on this and my attorney's recommendation was :

Because we have another I-140 in play , so we may be able to request USCIS to close the file on denied I-140 , at the same time also requesting to approve
the 485 since the PD is currently current on that one. As far as I can understand this is a strategy of hope. Although hope is not a solution but the reason I
see some merit towards this because both labors are completely different and their requirements are very different, so USCIS *should* not just deny the 485
based on just denied I-140. At worst they *should* give us a similar RFE and an opportunity to respond. Attorney also indicates that this 3 year degree issue is
mostly with PERM applications and not with others.

The reason he says this is the better option because he is not confident that we will win the appeal. By reading the USCIS response on RFE , I am not sure of that either.
If we file the appeal not caring what the result might be ..according to attorney and this I am not sure of is that when we file the appeal all processing will be **FROZEN**
including 485 and would rob us of having a shot of approval via current PD's I-140.

The company has agreed to file a new Labor in EB3 as a backstop measure , however as you might understand I would be looking at least 10 years before I get GC with an EB3 2010 PD.
I came here in 2000 and it has already passed 10 years , however this is necessary so that I keep extending my H1.

I do have an extended H1 valild till 2012, however last year when I retuned to US from INDIA , I came on AP , so I think if in worst case my 485 gets denied in effect nullifying
my EAD and AP. I would have to go out of country to revalidate my H1 and then come back.

My question to boarders here is :

a) What do you think about my options ? Is the Strategy of hope is the best one right now ?
b) Do really all processing gets frozen when we file an appeal on a denied I-140, specially in my case where I have two I-140s ?
c) Any other innovative ideas ?

-Thanks in advance.


New Member
Thanks whitemimauz3. Thanks for tip about PD porting however it wont apply to me because I-140 was revoked little less than 2 years after filing 485.
Actually USCIS has cited this same organization (AACRAO/EDGE) in their revocation response as to why my education doesn't stack up to a 4 year American degree.

Get an educational evaluation from AACRAO. USCIS refers to their global edge database to find educational equivalency for your new PERM, You can port priority date as long as underlying I-140 was revoked 180 days after filing I-485