I-140 denied (experience letter not on letterhead)

[orwell1984]

I applied for my I-140 through premium processing under EB-2. My H1-B runs out in February. Got a RFE asking for employment verification from my previous company X. My ex-boss moved to company Y and gave my experience letter on the new company's letterhead. Both X and Y are large popular Internet companies. I was laid off from Company X in June 2010 but was still on the payroll till August 2010. In my PERM, I had mistakenly given June 2010 as my last date. I got the employment verification from company X but it stated my last day as August 2010 so the lawyer did not want to use the employment verification letter but instead sent my W2.

Two days back my lawyer said that my application had been denied stating that my ex-boss did not have the authority to provide an experience letter since he was no longer with the company. My lawyer claims that it's a rogue officer who doesn't understand the rules correctly. The first step of action she's proposing and has already started is to have AILA's liaison agent talk to the CO's senior officer and overturn the case. She expects that it'll take a week to 10 days. The next choice would be file a Motion to Reopen or withdraw the case and apply in Nebraska Service Center.

My questions are

1) Did the lawyer screw up by not verifying the last date of employment at Company X with me before applying for PERM?

2) What's the probability of getting the decision overturned by AILA's liaison agent?

3) How long does a MTR typically take?

4) Realistically what are my chances of staying in this country?

5) My current company does not have an office in India. Can I still work for the company from India or Canada if there's an appeal pending?

To mitigate this, I've a letter from Company X saying that they do not object to my ex-boss providing the experience letter. I'm getting two more letters from my ex- co-workers at company X and one of them is a Project Manager and has monitored my work. What other information can I provide to overturn this decision?

[schintala]

1. I don't blame attorney office entirely and you also equally responsible to provide the correct information.

2. You can appeal the USCIS decision by taking your case reviewd with competent attorneys like Murthy Firm.

3. Generally MTR takes few weeks to two months. If there is no new additional details provided it will be forwarded to AAO. Then takes up to 3 years.

4. You can continue to stay beyond 6th year of H1, provided if I140 appeal is filed with in 30 days. H1B extentions are allowed based on pending appeal.

5. You can work in US, as long as you have valid H1 approval along with pending I140 appeal.

[gugan]

Hi Schintala, I saw in one of Murthy's forum that you can't file for H1 extension based on pending appeal because the I-140 is considered as denied, isn't true ?

[schintala]

No. It is not. You can continue to work on H1 with pending I140 appeal and eligible to get yearly H1 extentions.

[smitt]

Hi, My previous company is a multinational Indian company. The company has refused to give the experience letter on the letter head, I have the service letter and other docs. Also can get letter from my manager on a plain sheet. My lawyer says this can lead to rfe and possible rejection. Please advise.

[catx]

Letters from previous managers, supervisors, and even colleagues (as a last resort) who now work for other companies can be used, but there are a number of specific requirements. For example, the person has to have signing authority with their current employer and the letter has to be on their current company's official letterhead, they have to testify that they have direct knowledge of the beneficiaries work, and worked directly with the beneficiary, and the letter may even require an official sworn affidavit. The immigration attorney can ensure that the requirements are met to be acceptable and valid. A "letter ... on a plain sheet" is completely inadequate. (I used several letters from former managers, supervisors, and colleagues who now have their own companies, but I understand the rules have become stricter over the past few years due to abuse.)