Possible I-140 Denial ..Labor approved

[samshool]

hello all, I am on my sixth year h1-b expiring on 17th sept 2013. I recent got my labor approved and was preparing the i-140 application with my lawyer. I did my masters here in US graduated 2006 and since then I have been working for the same company as of current. I was going to apply for my i-140 premium and once approved apply for my 3 year h1b in time before sept 17. My company filed for my PERM. However my lawyer mentioned me that in section H "Job opportunity information" the minimum education level required stated was bachelors with 60 months (5 years) experience required and it was checkmarked >>>

Yes in alternate acceptable field of study and marked

NO in acceptable alternate combination of education

 

The above entrys prevent my I-140 in being approved , very less chances since What the above entails is that i need to have 5 years of experience (with a different employer) to be eligible for this job even though I have been with this employer for more than 7 years after my masters. Apparently experience with the same employer doest not count. It was an error in filing the labor application but I really had no control over that process. Please let me know if anyone has come across similar cases and what you have done about it. My lawyer recommends filing the i-140 regular processing anyway as there is a 10% chance of it being approved, applying for my H1B recapture time of bout 6 mnths that will keep me safe till feb 2014. and also starting the PERM re-filing process this time with the lawyer so it is filed correctly.

 

Please share your thoughts!!

 

 

[samshool]

Further, since the labor was filed with Min requirement of Bachelors degree + 5 years experience and no alternate combination of education & experience, wont me having a Masters degree from the US and a bachelors degree from my home country (India) make me eligible at least for EB3 category in the I-140 application? Im really trying to find out how strong my I-140 application can be. 

[ateetshah]

Your experience with same employer can be counted if your current job responsibilities and previous role if you had any are more than 50% different.

Also there are some things that need to be shown and evidenced like your responsibilities have changed over time and they are now more than 50% different. This has to be evidenced during experience letters in I-140 stage.

Your manager and/or HR can advise on this situation. Good luck. You still can do it as long as your employer agrees.

[samshool]

What the lawyer is saying is that the way the job order is drafted in the labor, i do not qualify for the job>>

Education min level Required - bachelors
Major field of study: Fine Arts, Computer animation
Experience in the job offered required for job (YES) No. of months: 60 (5 yrs)
Acceptable alternate field of study (Yes) - graphic design or related technical field
Alternate combination of education and experience acceptable? (NO)
Foreign educational equivalent acceptable? (Yes)

[samshool]

...And I have done my bachelors from india, Masters from US (2006 grad) , and 7 yrs work experience with same company in US since 2006.

[ateetshah]

Your education at this point in time is irrelevant. First and foremost is your experience for the job and if you are qualified to do per PERM requirements.

Refile the PERM and find a better lawyer.

[samshool]

Let me clarify again, my company filed for my perm not my lawyer.

[ateetshah]

Let me clarify again, my company filed for my perm not my lawyer.

Doesn't matter whoever files. At the end of the day your education + experience at filing time should correspond PERM education + experience. From the facts that you've given us, it's most likely going to be audited and/or denied.

[samshool]

there is a quick update to this case...

Now my h1b expires sept 17 2013. My lawyer was going to apply for recapture time of 100 days which takes me till dec 25th 2013 only unfortunately. Now he is delaying filing of this current i-140 till feb 2014 so my current approved labor goes into pending.doing this i get eligible for 1 yr h1b ext in 2014. ..my question is i get a gap from dec 25 to feb 2014 till i get my approval of h1b to re-enter united states.....is there any way i can avoid this gap and ensure continous stay?....quick recap>> my current approved labor certification expires jan 27 2014.... thanks guys much appreciated.