140 apporved in EB3 mistakenly. Reapply in EB2

[gvenkat8]

Dear Immigration Gurus'

I am no new this this forum as a viewer, however this is my first time posting a query here. I would like to seek some expert advise.

I had my MS in this country, and applied for my PERM under Advanced degree, however, my lawyer by mistake applied my 140 under EB3. I just noticed it, by looking at 140 approval notice (Sec 203(b) (3) (A) (i) or (ii)) which I guess is EB3. My dates are current (EB2), and

my questions are:

1. Can I re-apply for 140 under EB2.
   
2. My PERM certification states, it's valid for 180 days after approval. Will that afftect me from re-filing my 140.
   

Below are some specifics

PERM:

PD: May-2008

Approve date: Aug - 2008

140

Receipt Date: Oct - 2008

Approve date: Mar- 2009

I would appreciate if anyone could shed some light. Please advise me as to what are my options at this point?

Thanks!

[inviteyour]

Hi Venkat,

No worries. I am in the same boat. It is common to make mistake. You can always file I-140 again but you cannot do it in premium processing since your original LCA is with USCIS for previous application. You must request USCIS to obtain new copy of your original LCA from labor department and process it as regular application. They will not accpet premium processing without the original LCA. It will take longer time so do it immediately and file I-485 in parallel or concurrently if needed and your visa dates are current. Let me know if you need any more details.

Regards,

Raj

[gvenkat8]

Thanks Raj. I am going to check on that, and cannot wait longer. BTW, can we do a amendment or file new 140 all together...?

[gvenkat8]

I have refile'd my 140 on Dec 19. Fingers crossed...

[inviteyour]

Good move Venkat! I would like to know whether you re-filed in regular processing or premium? I believe that you can only file in regular processing with original LCA. Also let me know which processing center. It is only for my understanding.

Regards,

Raj

[gvenkat8]

Sorry for the late reply. I filed in regular, as I am not sure if PP is allowed for amendments. I am still waiting for any updates. How about yours?

[Anushswap]

I have a I-140 approved in EB3 with a priority date of Sept 2007. Now I am with a new employer who is filing in EB2. Should I use my old EB3 PD or should I apply for new one. Please advice.

[inviteyour]

Hi Anush,

You can always retain your priority date for any new filing. You must begin with new labor followed by new I-140. if you ever filed I-485 and the decision is pending due to no visa availability, then you can use new I-140 (EB2) approval to use old I-485 application. if not, file new 485 concurrently if your attorney makes no mistake.

hi Venkat,

My I-140 (EB2) got approved on Feb 1st 2012 after 7 months wait period without original LCA. Hope you will get same result in June 2012, if you didn't hear anything so far from USCIS. Good luck.

Regards,

Raj

[Anushswap]

Hi Raj,

Thanks a bunch for such a precise and accurate reply. My old employer did not file my I-140 & I-485 concurrently. I will make sure they do it this time carefully without any mistake.

Good luck with your GC process.

Best regards,

A