I-140 wrongly denied

[Kris101]

My I-140 was wrongly denied. Labor was filed under EB3 which got approved in my 6th year of H1B. The denial letter mentioned that the person does not have relevant education to qualify under second preference catergory. I am assuming that the USCIS is under the impression that the Labor was filed under EB2 which is second preference. My concern is if the appeal is filed to request USCIS to make note that the Labor was filed and approved under EB3, will the appeal take too long? I understand that the visa may be extended by 1 year increments until the appeal is done. But with one year increments the problem is that everytime I leave the country I have to get visa stamped to return back to US. I would have rather expected I-140 to be approved so that I get 3 years extension. Please advice what process to follow and which would take lesser time than the other?

[carryongc]

Did your Attorney check box 2 d for petition type on Form I140. Then that will be the reason of rejection.

Appeal will not work since L C is for EB3. Better option is to refile Form I140 under EB3 with the same Labor. Only thing is you won't be able to file under PP since PP will require original LC.

A word of caution for EB3 though. Petition Type 2 e on Form I140 is for EB3 Professionals. Check Petition Type 2 e on I140 only if you have a U S Bachelors or a single source Foreign 4 year Degree. Otherwise you need to go in for EB3 skilled by checking Petition Type 2 f which is for EB3 skilled workers.

Just layman's advise.

[Kris101]

Petition type is selected as professional. It's my understanding that professional group includes individuals holding bachelors degree from US or foreign equivalent and the job requirement should specify this.

[carryongc]

1. If it is for EB3 Professional & if the minimum requirement specified in Form ETA 9089 is

Bachelors, then the petition will go through only if you have a U S 4 years degree or a Foreign

4 year Degree or Masters Degree from a recognized University & that degree is evaluated to be

equivalent to a US bachelors. Bottomline being that it must be a Degree.

2. If however you do not have the above, & are relying on a combination of education &

experience, such as a 3 years Bachelors plus experience or 3 years Bachelors plus Post

Graduate Diploma or certification, then the petition will go through in the EB3 skilled category,

provided your labor was worded accordingly & the option for acceptable combination of

education & experience was selected as "Yes" in ETA 9089.

Not legal advise.

All the best.

[Kris101]

What about 3 years foreign bachelors and 2 years foreign masters? Will it be considered as EB3 professional?