I-140 Denied - Lawyer saying USICS fault (questionable)

[gupta1981]

Hello Gurus,

 

Please advise on my case -

 

I am a full-time employee in a reputed company. I have masters degree but due to the job role and requiremnts the labor application was filed suiting EB3 category and got approved in June 2012. My I-140 application was filed in Sep 2012 and it got denied last month. Denial reason -  

 

This petition, filed on September 10, 2012 seeks to classify the beneficiary as an immigrant under section 203(b)(2) of the immigration and nationality act, as amended. That section provides for the allocation of immigration visas to

qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

 

My lawyer is saying that we filed I-140 application under EB3 category only and it’s a mistake made by USICS and we will file for MTR next week. That sounds to me a very silly mistake on USICS part as the first step on any I-140 application is to determine the proper category and it’s quite clear on the first page of I-140 application based on the check box you select.

Is anyone aware of such kind of mistake made by USCIS on I-140 application??

So I requested a scanned copy of I-140 application from the lawyer and to add more to my suspicion it seems that initially EB2 category was checked and then he made a correction using white ink and marked EB3 category. I am not sure if he sent the corrected application to USICS or did he correct only while sending a copy to me. I know these are all speculations and I don’t have any facts.

If it was in fact a mistake from USCIS then is MTR the best option to go with?

But if it’s a lawyer’s mistake then I doubt that MTR would help. What options I have in that case?

I also just started the 6^th year on my Hi visa. I will really appreciate your response.

 

 

 

[Attorney_15]

If this was a mistake by the lawyer, it would be extraordinarily unlikely for USCIS to change fix it. I'll note the following in two parts. I would recommend consulting directly with a good immigration lawyer for a valuable second opinion and to obtain specific legal advice.

 

When an LC is timely filed with an I-140 petition, it remains valid and can be used to refile the I-140 petition. Depending on when one's H1B status expires, it may be acceptable to refile in EB3 classification. Refiling the I140 in EB3 is not a practical option with filing a Motion on the denied petition because when there is 1 LC and two petitions in different scenarios, USCIS will generally refuse to act and demand that the petitioner pick an I-140.