I-140 denied

[gauravsre]

Dear friends,

My company applied started my GC processing in mid 2010 in EB3.

My total education is

5 yrs education (3 yrs BCA, 2 yrs MIT)

8 yrs experience

So I qualify for EB2 and I requested to change my GC to EB2 while I-140 was on the way.

I got RFE in Jan 2011 which was replied but finally today I got notice of denial of my I-140. I'm sure that it was because my labor was filed in EB3 category.

I'm still waiting on my denial letter to know what went wrong but meanwhile; I have a few questions.

Can I file I-140 again based on same labor? Let it be on EB3. I can anyway port my I-140 to another EB2 labor (if approved) to comeback into fast lane. (please suggest if my understanding is correct).

Is the appeal process lengthy? I can change my I-140 to premium to get the appeal response faster if possible.

Can I apply fresh labor and fresh I-140 and keep my priority date as the old labor 2010?

Your response will be really appreciated.

God Bless,

Gaurav

[jaithran]

Mine got approved today.

[jaithran]

Gaurav, what was the RFE about?

Possiblity 1:

Job requirements - US Masters: if it was masters then based on your education, the probabilty of getting denied is higher since you only got 5 years of higher education in India which according to USCIS not considered as US masters equivalent. You should either have 3 yrs bach + 3 years masters in same field or 4 years bach + 2 year Masters in the same field to be considered as US equivalent masters.

Job requirements - US Bach + 5 yrs: If this is the requirements then, Is your education from MIT is a masters in same field where, a bachlors is a must for doing that course? If no, then thats an issue. USCIS do not consider it as an US bach equivalent, as it do not combine those both degrees to be considered as 4 year single source of education if your bach & MIT are not in same field or your MIT do not need a bachlors.

Now, definitely you can go and open an MTR but you need to do an education evaluation on credit basis and satisfy USCIS that your education is US equivalent to what is required for the JOB. Good Luck.

[Attorney_15]

A motion to reopen can be filed and will typically be faster than an appeal to the AAO. A credit-based evaluation is not necessarily the key to one's sought after success. USCIS and the AAO will typically not accept a set of degrees unless one can show they are accredited and one was earned based on the other and not merely after it.

[srinivasi]

Hi gauravsre,

I was in the same boat, Mine was BSC(computers) 3yrs + MSC (Computers) 2yrs. My Masters is based on BSc (computers) but still USCIS is looking for USA Master equivalent degree to consider as Advance degree for EB2 which should 18yrs of educations. Example : MCA or MTech. They are also looking for the posted job requirement must state that "Advance degree (or) BS + 5yrs of education" for EB2. In your Labor application part H, also need to match the above conditions are true.

Regarding your options, you can file MTR with in 30days of your denail. MTR processing time is 2 to 4 months usually. Second option is AAO process(usually, 30 to 37 months) which you may consider if MTR also gets denied. Thrid option is lawsuit, If your denail is more than 45 days then you can apply for lawsuit which also faster and the processing time is 4 to 6 months.

Apart from the above options, you may have to apply for New Labor and subsequent I140 which gives you a new priority date. when your dates are current and if get succeed in the above options then you will able to use your previous I 140 approval or new 140 approval whichever is good while filing for 485 process.