I-140 denied, PD current- urgent help!

[nikita28]

Hi,

Its a bit complicated case. My i140 got denied and we filed for MTR and Appeal before 1.5 months. PD is current in dec visa bulletin so i am going to file 485 in december. Lawyer is suggesting I should apply for new i140 however lawyer has made a mistake in perm and totally missed to write job exp for one company (6 months) and increased employment of another company by 6 months.

company a - may 2006- oct 2009

company b- oct 2009-may 2010

instead of giving the dates as above, she has given wrong dates which is company a- may 2006-may 2010.

Not really sure what are our options here. We really need to use this perm as our date is current after waiting for such a long time but not sure how to correct the error that lawyer has made in the labor. We are really worried that if we apply for new i140 and it gets denied we will not be able to appeal again- is that true?

Thanks in advance for your help!

[Attorney_15]

Generally, if a denied I-140 petition is re-filed and it is denied again, then it is possible to file an Appeal. It should be noted that when an I-140 is on Appeal, the law does not generally consider one to have an I-140 pending, which means to say that an I-140 denial on Appeal is not generally regarded by the law or USCIS in practice to provide a valid basis for filing an I-485 application (even if the priority date is current).

If one has an erroneously prepared LC that has been certified and is the subject of a denied I-140, one generally needs to be sponsored again in another Labor Certification.

To determine one's options it is usually a good idea to consult directly with an attorney for specific legal advice about one's options and situation.

[nikita28]

Thanks so much for quick response! So, just to reconfirm, if first i140 is denied and appeal is already filed.

And we file a new i140 (will be with expired LC) and then that is denied as well, we can appeal that decision as well? I thought if second i140 is filed with expired LC, we cannot appeal that decision.

[nikita28]

Also, can I file new perm with same employer for same position? And do I need to go through the whole ad placements process again if it is the same position? I will really appreciate any insights here. Thanks!

[chraju]

I dont think you can apply I 485 when I140 is pending at AAO, I am also in same boat.

also I am not sure you can apply I 140 on expired LC?

[nikita28]

If the first i140 was applied when LC was active and got denied, second i140 can be applied with expired LC. Just not sure if that can be appealed again in case denied.