RFE to change the preference classification EB3 to EB2

D

din21

Registered Users (C)
My original labor was for advanced degree (EB2). However, NSC had denied my case earlier due to education equivalence. So, I applied for both EB2 and EB3 at TSC (July 2007).

I got a RFE document from my attorney for the EB3 as follows, wondering if anyone was in a similar situation and was able to get an approval.
Request for Evidence is as follows:

This office is unable to complete the process of your petition without further information. Please read and comply with the request below.

This petition to classify the beneficiary as a third preference alien under section 203(b)(3)(A)(ii) of the Immigration and Nationality act does not appear approvable because ETA-9089 requires an advanced degree (second preference). If you wish to change the requested preference classification, please place X next to sentense below. Also include the new preference number and classification that you are seeking, and sign where indicated.

_I request my petition to be adjudicated as a ___________________preference petition under section __________________


Gurus, anyone who has successfully come out of this situation please help.

Note: My EB2 is still pending at TSC so according to my lawyer; requesting a EB2 would conflict with the other EB2 that is filed using the same labor.
 
Was the certified labor your own? If so, DOL/PERM approval of the labor certification corroborates your qualification to the education/degree requirement.
 
Yes, it is my own labor cert.

I have 1 year MSc degree from the US and 3 year BSc degree from India. We got the education evaluated after NSC rejected my I-140. The MSc was shown to be equal to US MSc by Trustforte.
 
I want keep tab on your denail also before giving any ideas to change classification. So Please let me know following.

1) what is the exact edu requirement of job from H section of Labor
2) did u file 2 different sets of 485 with eb2 and eb3 in TSC




din21 said:
Yes, it is my own labor cert.

I have 1 year MSc degree from the US and 3 year BSc degree from India. We got the education evaluated after NSC rejected my I-140. The MSc was shown to be equal to US MSc by Trustforte.
Click to expand...
 
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I want keep tab on your denail also before giving any ideas to change classification. So Please let me know following.

1) what is the exact edu requirement of job from H section of Labor
2) did u file 2 different sets of 485 with eb2 and eb3 in TSC
--------------------------------------------------------------------

Thank you for your reply.

1) The requirement is Masters or equivalent
2) No, we have only filed one set of 485 which is linked to the EB2.

I have received my EAD/AP/Fingerprinting and am currently in the 7th year of my H1B. I have completed over 180 days and am eligible for the AC21.
 
I did not get full details. please post as my signature.



din21 said:
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I want keep tab on your denail also before giving any ideas to change classification. So Please let me know following.

1) what is the exact edu requirement of job from H section of Labor
2) did u file 2 different sets of 485 with eb2 and eb3 in TSC
--------------------------------------------------------------------

Thank you for your reply.

1) The requirement is Masters or equivalent
2) No, we have only filed one set of 485 which is linked to the EB2.

I have received my EAD/AP/Fingerprinting and am currently in the 7th year of my H1B. I have completed over 180 days and am eligible for the AC21.
Click to expand...
 
To A0001

Hello,

You had asked me to post more information about my case.

Here are more details in addition to my posting:

Perm labor certification (ETA-9089) was certified on October 31, 2006.

Item H4 of ETA 9089 = Masters
Item H(4-B) of ETA 9089 (Major field of study) = Biotechnology, Molecular biology or Equivalent.
Item H(9) of form ETA 9089 = Is a foreign educational equivalent acceptable = Checked Yes

Please let me know if you need any more information.

Regards,
 
Please let me know follwing from ETA.

8. Is there an alternate combination of education and experience that is acceptable?
8-A. If Yes, specify the alternate level of education required:
8-B. If Other is indicated in question 8-A, indicate the alternate level of education required:
8-C. If applicable, indicate the number of years experience acceptable in question 8:

14. Specific skills or other requirements – If submitting by mail, add attachment if necessary. Skills description must begin in this space.


All your qualification in details also.

din21 said:
Hello,

You had asked me to post more information about my case.

Here are more details in addition to my posting:

Perm labor certification (ETA-9089) was certified on October 31, 2006.

Item H4 of ETA 9089 = Masters
Item H(4-B) of ETA 9089 (Major field of study) = Biotechnology, Molecular biology or Equivalent.
Item H(9) of form ETA 9089 = Is a foreign educational equivalent acceptable = Checked Yes

Please let me know if you need any more information.

Regards,
Click to expand...
 
A0001 said:
Please let me know follwing from ETA.

8. Is there an alternate combination of education and experience that is acceptable?
8-A. If Yes, specify the alternate level of education required:
8-B. If Other is indicated in question 8-A, indicate the alternate level of education required:
8-C. If applicable, indicate the number of years experience acceptable in question 8:

14. Specific skills or other requirements – If submitting by mail, add attachment if necessary. Skills description must begin in this space.


All your qualification in details also.
Click to expand...

Sorry, The labor is with the lawyer/company and I do not have the details in #8. I got the other information from the MTR/Appeal.

Here's my qualification:
MSc in Biotechnology 1 year
BSc in Microbiology 3 years
Experience prior to labor 5 years.

Current profession is Research Scientist at a biotech firm
 
1) You filed two 140 forms one in Eb3 and another in eb2 - if you filed at same time then you may get decission on eb2 140 petition also very shortly. then may wait to respond this correspondance if TSC RFE dead line is more.

How log you have time to respond back?

2) Usually if appeal is pending then NSC will not able to process another I-140 if its wit same labor certification.

Is the same labor or different labor?
But, TSC is lot flexiable in various areas..you may hope.


3)OLD labor ETA750 used to give lot of issues but PERM application gives a lot flexibility to include different type of educations like yours - attoney has keep little sence to fill H section items.
see H section 8* th item....
8. Is there an alternate combination of education and experience that is acceptable?


4) I believe your MS is from US school. Is it advanced degree? is there any diffrence between regular MS with this your short cut MS?

If you have entire file in your hand then we could able research for proper solution.

din21 said:
Sorry, The labor is with the lawyer/company and I do not have the details in #8. I got the other information from the MTR/Appeal.

Here's my qualification:
MSc in Biotechnology 1 year
BSc in Microbiology 3 years
Experience prior to labor 5 years.

Current profession is Research Scientist at a biotech firm
Click to expand...
 
A0001 said:
1) You filed two 140 forms one in Eb3 and another in eb2 - if you filed at same time then you may get decission on eb2 140 petition also very shortly. then may wait to respond this correspondance if TSC RFE dead line is more.

How log you have time to respond back?

2) Usually if appeal is pending then NSC will not able to process another I-140 if its wit same labor certification.

Is the same labor or different labor?
But, TSC is lot flexiable in various areas..you may hope.


3)OLD labor ETA750 used to give lot of issues but PERM application gives a lot flexibility to include different type of educations like yours - attoney has keep little sence to fill H section items.
see H section 8* th item....
8. Is there an alternate combination of education and experience that is acceptable?


4) I believe your MS is from US school. Is it advanced degree? is there any diffrence between regular MS with this your short cut MS?

If you have entire file in your hand then we could able research for proper solution.
Click to expand...

To answer your questions:
1) The EB2 was filed on the 17th of July and the EB3 was filed on the 27th of July. Both at TSC. My attorney purposely staggered the applications because he did not want them to clash. We have 30 days to reply for RFE as 12 days have already passed (42 days total).

2) The appeal/MTR for the first I-140 was denied in June at NSC saying that we filed late. Yes, It is the same labor (PERM).

3) My labor was filed in Aug 2003. However, we filed perm in 2006 and ported the priority date.

4) The MSc is from UK and was found to be equal to a US MS by Trustforte.

Also, I had a conversation with my Lawyer/HR and he said that asking for EB2 classification for this RFE (EB3) might mess the whole case up as one is not allowed to file two I-140s of the same type. So, the decision is to ask for EB3.

Thank you for your help.
 
C Blo

din21 said:
To answer your questions:
1) The EB2 was filed on the 17th of July and the EB3 was filed on the 27th of July. Both at TSC. My attorney purposely staggered the applications because he did not want them to clash. We have 30 days to reply for RFE as 12 days have already passed (42 days total).

Then you can wait at least 29 days

2) The appeal/MTR for the first I-140 was denied in June at NSC saying that we filed late. Yes, It is the same labor (PERM).

what is the exact phrase in the initial NSC denail?

3) My labor was filed in Aug 2003. However, we filed perm in 2006 and ported the priority date.

Try to get the copy of H section of PERM labor and 14/15 columns of OLD Labor

4) The MSc is from UK and was found to be equal to a US MS by Trustforte.

Also, I had a conversation with my Lawyer/HR and he said that asking for EB2 classification for this RFE (EB3) might mess the whole case up as one is not allowed to file two I-140s of the same type. So, the decision is to ask for EB3.


suppose ...you did not answered ...what will happen? think about it. Logic!!!


Thank you for your help.
Click to expand...
 
Last edited by a moderator:
Guys,
I originally applied for 140 in EB2.

H from labor says ed reqd si Masters.
Alternate education is accespted - Yes and that is Bachelors

Now my 140 is denied in 3 yrs + 1 1/2 degree issue and it is in appeal. We filed another 140 in EB3 category using the same labor while the apeeal is pending. Last week it was also denied. I am still waiting for the reason. Is the old labor good for EB3 ? Could be the denial reason that the labor is only good for EB2?


Thanks for any comments.
 
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