Weird RFE on I485 during EB3 to EB2 Porting


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My EB3 I140 is approved in 10/27/2008. I485 is pending from 08/14/2007 (Filed in summer 2007 using pre-existing Labor) in Nebraska Service Center. Filed new Labor under EB2 with the same employer on 04/07/2011 and got approved on 06/01/2011. Filed new I140 with EB2 Labor on 10/14/2011 and got approved on 10/24/2011 with old Labor PD 10/08/2004 ported. Contacted USCIS and opened SR on 01/04/2012 as I485 is pending for more than 60 days after the new I140 is approved. Received following RFE on 01/14/2012.

See the attachment for details

Your case is being held in this office pending your response. Within this period you may:

1. Submit all of the evidence requested;

2. Submit some or none of the evidence requested and ask for a decision based upon the record; or

3. Withdraw the application or petition. (It is noted that if you request that the application or petition be withdrawn, the filing fee cannot be refunded)


It appears that you are an applicant for adjustment under section 245 of the Act based on one (preference) category and wish to have your application considered under another category.

Please note:

Request for Conversion Must Be Made in Writing. If an alien verbally requests conversion of an adjustment application, perhaps during the adjustment interview itself, he or she should be asked to date and sign a written statement to that effect (at which point such interview could proceed without further delay provided he or she is eligible to immediately adjust under the new classification).

Please submit a written statement for conversion from your third preference I-140 to your second preference I-140.

Did anyone receive similar RFE? Is this a request for Interfiling? New I140 is approved with older PD. Do I still need to do the Interfiling?

My employer has not provided me the copies of I140 approvals. He is asking to sign an Employee Consent for 18 months to provide the copy of I140 approval. I've been working with the same employer from February 2008. I've earlier written the consent and it is expired now. I don't want to write one more agreement. Can I find my own lawyer to reply to this RFE? Does it require a copy of I140 approvals?

Note - The attorney who filed my EB3 application is not same as the one who filed EB2 application as my company has changed the attorney. Will attorney or employer receive the copy of I485 RFE?

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"Please submit a written statement for conversion from your third preference I-140 to your second preference I-140."

That says it all. Do you want to do it? If so, do as the USCIS says. Do you really need a lawyer for this?

Did not know they had a rule to have a request in writing. Probably that's just a proference of the adjudicator.

As far as your agreements go... I am going to suggest that you review them all with a labor lawyer (licensed in your state) to see if they are even enforceable. And you should do it before signing anything new. Just request an advance copy so your lawyer can review it. That alone may cause your employer to back up.

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