Please Help! I-140 RFE (Gurus/Attorneys please help)

E

enggr

Registered Users (C)
I received an RFE from NSE on Sep 2nd week asking me to prove that I have 5 years of experience after completion of degree.

Country: India
Date of Joining with current employer : Jan 2006.
PERM Filing/ Approval Date: Aug 2006.
I-485/ EAD filing Date: July 2007.
I-140 RFE received date: Sep 2007.

The RFE reads as follows.

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"Please submit evidence which establishes that the beneficiary had at least five years of experience as a software engineer after receiving his bachelor's degree but prior to August XX, 2006. Since your evidence does not indicate that the beneficiary received his bachelor's degree until 2002, this does not appear possible.
If the beneficiary received a degree prior to 2002, please submit a copy of that degree. A certificate that he had completed a coursework for a degree is not a degree."
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This is my history.

I did my 4-year Bachelor's of Technology in Mechanical Engineering in Dec 2000. My diploma (degree certificate) has two dates on it. December 2000 and June 2002. The December 2000 date is mentioned in Big letters as its the completion of my final semester exams. The June 2002 date was due to taking one of the supplementary exam of one subject of one of my previous semester .
I was hired by a software company in December 2000 and I have work experience ( as well as experience letter with 40 hours a week) as a software engineer from Dec 2000.
But now according to the RFE, INS is not ready to count that experience from Dec 2000. I finished my school in Dec 2000 and never had to go to the school except for one exam in 2001 and another one in June 2002. (In my university, examinations are conducted only once in 8 months). I checked my transcripts that were sent along with I-140 and it has the dates of 2001 and June 2002 due to the examination. Its present at the bottom along with Main date of Dec 2000.

I had placed the course completion certificate from my college along with the I-140 application and it looks like INS don't take that info consideration.
I am in deep trouble now. Your help is greatly appreciated. My attorney didn't find these issues before filing the labour cerfification on EB2.

The newspaper ad given before filing the labour certification asks for Bachelors degree and 5 years of experience.

Please help me by sharing your experience(s) as well as comments. I will really appreciate your time and effort.


My only concern is to save my labor certification so that I can keep my I-140. I read in some threads that INS gave an option to convert the case as EB3. I would have been very happy if I had received that option. I requested my attorney for EB3 conversion at this point of time. He said its not possible as conversion needs to qualify the beneficiary for both categories (EB2 as well as EB3). He added that the labor cerfification was done on EB2.

I have applied for my I-485/EAD in July 2007. The EAD is about to come but I have this biggest problem of I-140 RFE. If the I-140 is denied my wife's EAD will automatically get revoked which will stop her from working.

Some of my friends recommended to respond to the RFE, file an MTR if I-140 is denied and an appeal if MTR also doesn't work. They also suggested me to file a new PERM application as a backup. All this works as I don't have any plans to switch my employer till I receive my final green card. But my wife will be in trouble as she can't use the current EAD. An attorney friend of mine is saying that those actions (MTR/ Appeal) will only keep the Labour and I-140 on hold/pending, but won't keep the EAD alive. Is there a way I can keep my EAD alive by those motions?

Is there any way I can get this RFE cleared and have my I-140 approved? Can I keep my EAD alive somehow
 
File new perm immediately.

You get option to convert (from EB2 to EB3) if:

1. You do have the necessary experience required on LC, ...but...
2. IO doesn't judge the job requirements (as per LC) to be qualified for EB2 but finds them good for EB3.

If you don't have enough qualifications or exp. required in the LC, it's impossible to save I-140.

Your attorney sucks, just like most of them.
 
Last edited by a moderator:
How about this:

You tell the IO that during the first one-two years of working for your current company (the GC sponsor), your duties were 50% different than the job described in the LC. You can then count that experience for this job... though I don't know how much experience you had with this company before filing for GC, as you haven't mentioned all the dates. You'll need massive cooperation from employer and the attorney. It still is a very long shot.
 
Out of curiosity, the service center asked to furnish experience gained before August 2006. Enggr joined the employer on January 2006. Does this mean he can furnish experience with the current employer too (January-August 2006)?
 
manwithnoname said:
Out of curiosity, the service center asked to furnish experience gained before August 2006. Enggr joined the employer on January 2006. Does this mean he can furnish experience with the current employer too (January-August 2006)?
Click to expand...

The short answer is No. But I'm trying to push the envelop and find creative ways of wriggling out of this situation in which Enggr so unfortunately finds him/herself in.

Let's say you have a job A with the current company. After some time, the job responsibilities change more than 50% and you're in another job (let's call it job B) with the same company.

If the LC is for job B, then you can use experience of job A for I-140. It's a must that job A must have differed at least 50% from job B. Otherwise it cannot be done.

There're many potential show-stoppers here. Did the responsibilities really change? Did job title change sometime around filing time? Are employers and attorney willing to go with this? Will the IO buy all this? So, this could be a long shot, but -in absence of anything better- worth a try.

I strongly recommend a consultation with a very very competent attorney (such as Rajiv). If there's a way, he'll find it.
 
EB2 to EB3

Gravitation,
Thank you very much for readying my thread and giving your valuable advice. I have enough experience as specified in LC (Bachelors degree and 5 years), but IO is not agreeing as the 5 years is not completely "progressive" to bachelors degree. At this point I am putting all my efforts to get this case treated as EB3. My experience with currently employer before LC is just 6 months. (Jan 2006 till Aug 2006).
I also need to consult with a very very competent attorney.
I request my attorney regarding EB3 during last week and he said no as downgrade is possible only if the previously listed category is satisfied (EB2). I am wondering, why would people request for downgrade (in many cases, IO itself give a choice to convert to EB3) if the qualify previously listed category

As everyone is suggesting I am also planning to file a new PERM next week with the support of my employer.

Please advice me with more inputs. I will keep everyone posted.
 
current experience wont' count

manwithnoname ,
From my attorney as well as my employer the experience gained from currently employer will not count. Regarding Aug 2006 mentioned in RFE, I would say IO won't consider it when they receive the RFE response. I am seeing a number of threads where IO makes sure that experience from current employer is not counted.
 
My I-140 got denied after RFE response. Which option should I pick?Appeal or new 140?

Friends,

My I-140 got denied after the RFE response. In response to the RFE in September my lawyer responded to the RFE in November and the result came early this month (march 2008).
In the RFE response in last November my lawyer told USCIS that the category was marked wrong as EB2 where the case should be actually under EB3.
USCIS denied the application saying that application cannot be approved under EB2 and request for EB3 cannot be entertained at this point.

The following are the words from USCIS denial notice.



"The petitioner indicated that it had made an error in marking the petition form and that the petition should be considered one requesting the beneficiary's classification under a different section of law. However, since the petition was filed for second-preference classification and was initially adjudicated on that basis, USCIS will not at this stage consider it for some other classification.
In accordance with a USCIS announcement dated on May 23, 2007, the petitioner may elect to file a new petition on the beneficiary's behalf requesting a different visa classification but supported by the instant labor certification.(A motion making this request would be denied.) If the petitioner elects to persue this option, it should include a cover letter which explains the request, include a copy of this denial notice, and clearly report that the original labor certification is with LIN XXXXXXXXXX housed in AXXXXXXXXX. "


Also mine and my wife's I-485 got denied on the same day. In the denial notice of I-485 USCIS has mentioned that "The regulation does not provide for an appeal to this decision."

We are planning to file a new labor certification by end of this month as the current one is 99% a gone case

As you all know I was trying to save this application to save my wife's EAD.

Please help me with one of the options below.

Regarding my rejected I-140 I have two choices as per USCIS and my lawyer. Either of them should be filed 33 days from first week of march. Doing both of the below options at the same time will result in automatic rejection of both

1) Appealing the decision
Pros: My wife gets a chance to win her EAD back which is a big win for us
Cons: USCIS has indicated in the rejection notice that they are rejecting the I-140 because it does not qualify for EB2. they added that our request for converting it into EB3 cannot be entertained at this moment of time. So chances of winning the appeal is small compared to filing new I-140 as per my lawyer

2) Applying new EB3 I-140
Pros: Chances of getting an approval under this new EB3 I-140 is more compared to appealing the old EB2 application (the old application also includes and the request to convert EB2 into EB3)
Cons: Definite loss of my wife's EAD. Also since the labor is on Aug 2006 they have a common expiration date of Jan 2008. All labors from June 2007 (somewhere around that time) expire 6 months of the approval date and I-140 within that 6 months only will be considered for processing. Since we have passed the Jan 2008 period my lawyer is saying the new I-140 can also get rejected. the only argument we can place is, the processing time taken/length of old I-140 processing and the suggestion given on old I-140 denial notice dated march 1st week.

I am wondering whether we can do an MTR (Motion to re-open on the old application). This option is not mentioned by USCIS or lawyer. I am wondering whether this option will eliminate the appeal/new I-140 application within 33 days previlege

. My answer to my attorney regarding the next course of action depends on your advice(s) very much.

Thanks in advance and I really appreciate who posted replies to my questions earlier.

Enggr:

Labor approved 2006 Aug EB2
I-140 applied 2006 Nov EB2
I-140 RFE 2007 Sep
RFE response 2007 Nov
I-140 denied 2008 Mar
 
You can only buy time through an appeal as the service center was clear on their stance. I would not go for re-filing the I-140, rather go with a new GC application starting with another LC.
 
I'm working on new LC and at the same time re-applying I-140

manwithnoname said:
You can only buy time through an appeal as the service center was clear on their stance. I would not go for re-filing the I-140, rather go with a new GC application starting with another LC.
Click to expand...

I already started working with my employer for the new labor certification application. Regarding the old application since appeal is a bad idea I'm going with filing another EB3 I-140 as there's nothing harm except the filing fees. I hope that doesn't create any negative effect to the new LC. Please advice.
 
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