I-140 was denied. Applied under EB3 - Professional category

[JT1977]

I have three (3) years Bachelor degree in commerce. I have completed one year course in Application programming. I am certified in oracle and Sun Java programmer. I have around 12 years’ experience in IT.

 

I came in USA on H1B visa with US based - IT consulting company in January 2007. I had changed company in August 2008 and started work with the one of offshore software company. They have around 900 employees in USA and 8000 employees in all over the world.

 

My H1B Visa expired in April 2013, so I have to went back  to India in March 2013. I am currently working with same company in India.

 

This offshore software company applied PERM (form 9089) on December 2012 and got approved in May 2013.

 

I-140 was applied under the EB-3 – Professional category in premium processing on 06/11/2013.

 

1. Received  NOID on 06/20

 

Received detail of NOID from company’s attorney:

 

The attached I-140 NOID is based on the submitted PERM Form 9089 Section H minimum requirements that (1) petitioner requires a minimum of a Bachelor’s Degree and 24 months experience, and (2) that the petitioner will not accept an alternate combination of education and experience.  The NOID goes on to state that “the record indicates that the beneficiary possesses a three-year Bachelor’s degree and 13 months of experience,” and thus does not meet the minimum requirements. 

 

We believe this NOIR is in error, and that we already have the necessary documentation to make a Response to NOID, as follows:

 

Degree Requirement:  JT1977 degree is Bachelor of Commerce which is a 3-year degree, but his file contains a Dec 2012 Trusteforte equivalency evaluation stating his degree is equivalent to a U.S. Bachelor of Commerce Degree with a dual major in Management Information Systems and Accounting.  The PERM job ad stated “Must have a Bachelor’s Degree (or foreign equivalent) in … Management Information Systems,” and for Form 9089 Section H part 9 we marked “yes” that a foreign educational equivalent is acceptable. 

 

It has been our standard practice to mark “no” for Form 9089 Section H part 8 (“is there an alternate combination of education and experience that is acceptable?”) while marking “yes” for Form 9089 Section H part 9 (“is a foreign educational equivalency acceptable?”) and including the following line in Form 9089 Section H part 14: “We will accept any suitable combination of education, training, and/or experience in lieu of the above stated education and experience requirements.”  Such practice had long been successful in obtaining approvals, but it now appears that USCIS has changed their review process and is taking the position that Section H part 8 now trumps Section H part 14. 

 

Therefore, our argument will be that USCIS is incorrectly ignoring the “totality of the circumstances”—by focusing on Section H part 8, USCIS is ignoring the fact that all the other evidence clearly supports the viability/acceptability of a foreign degree equivalency: 

• 9089 Section 8 part 9;
• 9089 Section 8 part 14;
• the PERM job ad; and
• the PERM Recruitment Report.

 

In addition, we can also use the attached AILA SCOPS teleconference item #3 as an exhibit:  it indicates that USCIS will review the totality of a submitted 9089 to determine the education requirement.  This SCOPS document therefore supports our argument in that the current NOID decision appears to contradict the guidance being provided to the public.  By strictly focusing on Form 9089 Section H part 8, USCIS is making a mistake of form over substance. 

 

 

Experience Requirement:  Our submitted Form 9089 lists his work experience as 18 months at US Based IT consulting company and 14 months at India Based IT consulting company. We have valid experience letters confirming both periods of employment, so it appears that the NOID is mistaken when it states that “the record indicates that beneficiary possesses…[only] 13 months of experience.”

 

 

1. Filling NOID respond on 07/03/2013.
2. Received notice for denial on 07/17/2013.

 

Attorney note on denied notice:

 

Just wanted to let you know that unfortunately we got a denial on your I-140 and USCIS is indicating that we cannot combine your education and experience to equate to a Bachelor’s degree, however this is inaccurate and allowed in the regulations. Your employer is aware of this and has already chosen to refile the I-140 (this is often the strategy when you get a bad officer reviewing a case) and I can let you know once we have a new receipt notice. Hopefully no problems on this one!!!

 

==========================================================

 

Please advise.

1. Which one is the best category to reapply I-140 ( EB3 – Skilled worker or EB3 – professional category?
2. Can I reapply I-140 in Premium processing?

 

 

[ateetshah]

EB3 Professional would be the best option. Out of luck with 3 year degree unless you have US Masters. Also 3 year degrees are very problematic from USCIS perspective rather than DOL.

You will have to restart PERM most likely, but please ask all questions to a qualified immigration attorney.

[SS1971]

JT1977,

 

 

Did you get your I140 filed again in skilled worker category? If yes, was that approved?

 

 

[aroop]

 

I have three (3) years Bachelor degree in commerce. I have completed one year course in Application programming. I am certified in oracle and Sun Java programmer. I have around 12 years’ experience in IT.

 

I came in USA on H1B visa with US based - IT consulting company in January 2007. I had changed company in August 2008 and started work with the one of offshore software company. They have around 900 employees in USA and 8000 employees in all over the world.

 

My H1B Visa expired in April 2013, so I have to went back  to India in March 2013. I am currently working with same company in India.

 

This offshore software company applied PERM (form 9089) on December 2012 and got approved in May 2013.

 

I-140 was applied under the EB-3 – Professional category in premium processing on 06/11/2013.

 

1. Received  NOID on 06/20

 

Received detail of NOID from company’s attorney:

 

The attached I-140 NOID is based on the submitted PERM Form 9089 Section H minimum requirements that (1) petitioner requires a minimum of a Bachelor’s Degree and 24 months experience, and (2) that the petitioner will not accept an alternate combination of education and experience.  The NOID goes on to state that “the record indicates that the beneficiary possesses a three-year Bachelor’s degree and 13 months of experience,” and thus does not meet the minimum requirements. 

 

We believe this NOIR is in error, and that we already have the necessary documentation to make a Response to NOID, as follows:

 

Degree Requirement:  JT1977 degree is Bachelor of Commerce which is a 3-year degree, but his file contains a Dec 2012 Trusteforte equivalency evaluation stating his degree is equivalent to a U.S. Bachelor of Commerce Degree with a dual major in Management Information Systems and Accounting.  The PERM job ad stated “Must have a Bachelor’s Degree (or foreign equivalent) in … Management Information Systems,” and for Form 9089 Section H part 9 we marked “yes” that a foreign educational equivalent is acceptable. 

 

It has been our standard practice to mark “no” for Form 9089 Section H part 8 (“is there an alternate combination of education and experience that is acceptable?”) while marking “yes” for Form 9089 Section H part 9 (“is a foreign educational equivalency acceptable?”) and including the following line in Form 9089 Section H part 14: “We will accept any suitable combination of education, training, and/or experience in lieu of the above stated education and experience requirements.”  Such practice had long been successful in obtaining approvals, but it now appears that USCIS has changed their review process and is taking the position that Section H part 8 now trumps Section H part 14. 

 

Therefore, our argument will be that USCIS is incorrectly ignoring the “totality of the circumstances”—by focusing on Section H part 8, USCIS is ignoring the fact that all the other evidence clearly supports the viability/acceptability of a foreign degree equivalency: 

• 9089 Section 8 part 9;
• 9089 Section 8 part 14;
• the PERM job ad; and
• the PERM Recruitment Report.

 

In addition, we can also use the attached AILA SCOPS teleconference item #3 as an exhibit:  it indicates that USCIS will review the totality of a submitted 9089 to determine the education requirement.  This SCOPS document therefore supports our argument in that the current NOID decision appears to contradict the guidance being provided to the public.  By strictly focusing on Form 9089 Section H part 8, USCIS is making a mistake of form over substance. 

 

 

Experience Requirement:  Our submitted Form 9089 lists his work experience as 18 months at US Based IT consulting company and 14 months at India Based IT consulting company. We have valid experience letters confirming both periods of employment, so it appears that the NOID is mistaken when it states that “the record indicates that beneficiary possesses…[only] 13 months of experience.”

 

 

1. Filling NOID respond on 07/03/2013.
2. Received notice for denial on 07/17/2013.

 

Attorney note on denied notice:

 

Just wanted to let you know that unfortunately we got a denial on your I-140 and USCIS is indicating that we cannot combine your education and experience to equate to a Bachelor’s degree, however this is inaccurate and allowed in the regulations. Your employer is aware of this and has already chosen to refile the I-140 (this is often the strategy when you get a bad officer reviewing a case) and I can let you know once we have a new receipt notice. Hopefully no problems on this one!!!

 

==========================================================

 

Please advise.

1. Which one is the best category to reapply I-140 ( EB3 – Skilled worker or EB3 – professional category?
2. Can I reapply I-140 in Premium processing?

 

JT1977,

 

Any luck with the new I-140?

 

My I-140 is also being applied in EB3 professional category. I have exactly same education & years of experience like yours.

 

I am trying to reason with my attorney saying that it could be problematic based on this forum thread but he thinks otherwise.

 

Really appreciated if you can let us know how USCIS dealt with your case in your new I-140 application.

 

Thanks,

Ajay