I-140 denied because RFE response send to wrong Service Center

[kaustav.sengupta78]

Hi,

I came to USA in July 2006. My GC was filed with my current employer in EB2 with PD 26 October 2009. I-140 was filed on June 17 2010. My H1B got extended to October 16 2013 based on my labor approved & I-140 pending & also summing up the days outside USA. 30th March 2011 TSC raised RFE asking to produce documents to show my employer can support my wages & also to transcripts for my Masters. My company lawyer send response to my RFE but by mistake send it to NSC instead of TSC. NSC never returned the documents & suddenly today TSC has send an I-140 denial notice stating we didn't respond within 33 days. After receiving this denial notice my company's lawyer realized that he by mistake send the response to NSC instead of TSC.

The lawyer also called up INS & spoke to field office & it seems the officer said though we have the rights to appeal with MTR, chances are minimum for the appeal to be granted.

The lawyer is saying to file a new PERM now.

I'm totally perplexed due to his stupidity & don't know what to do.

What are the options for me now other than filing a new PERM?

Also:

1) Can we appeal with MTR for the denial I-140 & also start new PERM?

2) Can we appeal with MTR for the denial I-140 & also file a new I-140 for the same labor & do premium processing this time?

3) If possible to file new I-140 for the same labor in premium processing, what will happen if my new I-140 is approved/rejected while my MTR appeal is pending for the denial I-140?

Any information/suggestion wiill be highly appreciated.

Thanks for your time.

[habeebulla]

First, it's very unfortunate hear your situation. It's a stupid mistake and another example of not having proper communication with beneficiaries. Some attornies keep strong communication with the employer and the employee. They inform each steps and there are occassions they make some mistakes (mostly minor but makes major impacts).

Another thing, why your I-140 filing delayed? LC is valid only for 180 days. Your PD is 26 Oct 2009. If the approval is delayed by a month, say 26 Nov 2009 (Check your PERM approval date), your I-140 filing occured after 180 days limit.

New PERM is better than appealing. Appeal process may take years (there are cases over 2 year old still pending).

[kaustav.sengupta78]

Anyone has been on the same boat? Any advice/info is highly needed.

[Attorney_15]

If something is filed to the wrong USCIS location, there is some indication from USCIS that such a matter should not be rejected but re-routed. A denial for mis-filing may be possibly challenged on such a basis.

For specific legal advice one should consult directly with experienced immigration lawyer.