Pre Approved Labor

[dazzling]

dazzling:

Can you add your 2 cents ?

Please see my posts before and comment - I am in a delicate situation as far as I140 goes. Appreciate ur contribution on this.

- msd_gc.

msd_gc ..

Sorry for being late in responding to your message. I was vacationing .. came back and have been catching up with email at work for the last 2 days and trying to finish stupid things that had accumulated in my absence ...

OK, I think there are different possibilities and they depend on the category in which you applied:

You applied in EB3

In EB3, USCIS considers two degrees to be equivalent to another degree. Since you have a 3 year + 2 year degree, you should not have any issue. If a education evaluation was not submitted, then they may come back with a RFE. If an education evaluation was submitted and was equivalent to a Masters Degree, in my opinion they will not come back with a RFE, but it depends on individual adjudicator (If there is a guideline for this, it is not published so we do not know about that and we cannot be sure of the criteria that they use).

If they come back with a RFE, you can reply to that with an education evaluation stating that you have 5 years of college and they are equivalent to a Bachelors Degree + 1 more year of college work. However, I would think that they will not come back in EB3.

You applied in EB2

If you have applied in EB2, you may have a problem in your hands. The CFR for classification in E21 (Advanced Degree) category specifically states that the Alien must have a US Bachelors Degree or a foreign equivalent degree. This equivalent cannot be a functional equivalent which means that two degrees cannot be combined to be equivalent to one degree OR a degree and some work experience cannot be combined to make US Bachelors Degree (A US Bachelors Degree is 4 years of study). However, if you are not using your MS degree for classification into this category which means that you have atleast 5 years of work experience + any additional experience required in your labor (if any), then you may have a way out. In that case, like unitednations, you may have to state that you have completed 5 years of college education (labor requires only 4) and so you are qualified (your equivalent degree will be Bachelors + 1 year of college work). You will need a good attorney to put this case together in this scenario.

I still think that in EB2 you will have a tough time getting it through. I have seen many AAO decisions and in all of them one thing stands out, for EB2 the beneficiary must have a 4 year degree. Also unitednations was in EB3 and his case got approved with a 3 year degree. I know this law is stupid, but that is the way it is. I have seen people with 11-12 year work experience also getting denied from AAO in EB2 because they have a 3 year degree.

 

[dazzling]

In addition ...

To add:

If you have filed in EB2, then I think you will have a tough time. If I were you, I would file in EB3 also and also file 485 with this EB3 140 (before the time runs out and there is a Priority date added to EB3). Once you have filed your 140+485 in EB3 and there is a PD on this category (which DOS says will be there in Jan 2005), then you can atleast get benefits of EAD and AP while your 485 would be pending.

Also, you can file 140 in each category with the same labor. The way to do it is to attach a copy of the labor and provide your A# that you would have received with 140 that you have already filed.

Even if some documents are missing (most people from India would not have their Birth Certificate), dont waste precious time and file your 485. They will later send a RFE for missing Birth Certificate. William Yates memo provides for a RFE to be sent necessarily if initial evidence is missing.