RFE, NOID on I-140 / I-485

A

andhrasree

Registered Users (C)
Hello Everyone,

I recently received a RFE, followed by NOID on my I-140 that was filed concurrently with I-485. Please Can someone please read my case and offer guidance.

(1) Came to US on Company A's L-1 in May 2002.
(2) Status tranferred to Company B's H-1B in Jan 2003.
(3) Not realizing that the status was tranferred, I continued to work for Company A until September 2003.
(4) Realized the mistake and got the status transferred to a H-1B under Company A.
(5) Since then, never violated the terms of a non-immigrant visa. H-1B transferred to Company C in November 2004. Left US and reentered in 2006 (a very short vacation; had to take Visa at Chennai Consulate because of expired Visa).
(6) Company C filed for PERM LC in November 2006 and it was approved
(7) Company C filed for I-140 / I-485 (concurrent) in July 2007.

I have never been on bench, i.e., without salary for even 1 day. I have all payslips, W-2s, Tax returns, etc.

When I filed I-140 under EB-2, I quoted my total experience with company A as proof of experience. USCIS issued a RFE, followed by NOID stating that the during the period Jan 2003 -- Sep 2003, I was involved in unauthorized employment and therefore it cannot be counted towards "5 years of progressive experience". We tried to mention that this was an inadvertent mistake and that my original L-1B was actually valid until 2005. USCIS responded saying that COS happened in Jan 2003 itself and therefore, the alien cannot talk about L-1B after H-1B approval.

Can someone please help. I am in serious situation as I will be reaching 6th year of H-1B in June 2008.

Respectfully,
Andhrasree.
 
Please help

Hello Everyone,

I respectfully request help. After spending thousands of $s with attorneys, I really don't know what to do.

Regards,
Andhrasree.
 
andhrasree said:
After spending thousands of $s with attorneys, I really don't know what to do.
Click to expand...

For your thousands of dollars, what did the attorneys tell you to do?

USCIS is probably right. You may need to amend the I-140 to be EB3 instead of EB2, with the associated PD wait, and you may lose the I-485. Your PD is more than 365 days ago so you can get a 7th year H1B.
 
Well, the attorney asked me to be truthful right from the get-go, i.e., not to let USCIS conclude that the petition was fradulent.

Thanks for your advice, but can we change the I-140 petition now to EB-3 from EB-2, against a PERM LC which says that the job offer is for a position that demands at least 5 years of experience?
 
Also, I was told that I don't qualify for 7th year extension based on just priority date / LC alone, because the event of I-140 denial or I-485 denial prohibits an alien from having 7th year extension. I think it is under section 104(c)?
 
In the worst case if your I-140 gets denied the GC trail can be still kept alive by appealing the case. You can buy time and start another GC trail (PERM LC, I-140). Meanwhile you can get the h-1B extensions.

Good luck.
 
andhrasree said:
Also, I was told that I don't qualify for 7th year extension based on just priority date / LC alone, because the event of I-140 denial or I-485 denial prohibits an alien from having 7th year extension. I think it is under section 104(c)?
Click to expand...

You could respond by asking USCIS to amend the I-140 to be EB3. Since the EB3 date was current during July, you should be able to keep the I-485 alive. But in the worst case, one would file a new I-140 based on the old LC, and since the old LC would still be valid and > 365 days in the past, you can get a 7th year H-1.
 
Thanks for the guidance.

Forgive me for repeating the same question, but if the old LC says that the position requires at least 60 months of "post baccalaureate experience", how can I file an EB-3 based on that LC. EB-3, I believes, can only be used for an LC that only asks for 2 years of experience.

Let me clarify that I only possess a B.S degree.

Respectfully,
Andhrasree.
 
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