I140 denied - Help needed.

[GCWarrior]

Hi Gurus,

I am on 9th year H1B extension.I filed I140/485 concurrently in June 2007 and on April 11th I got the denial email for I140.
No RFE/NOID received.

Here is my case.

PD May 2003, EB2, own labor. During Dec 06, the labor was converted from NON RIR to RIR and amended to accept BS+5 OR MS+3 to reflect the current state.

I-140/485/EAD/AP applied in June 2007, NSC and received EAD/AP and used AP recently. My H1B valid till Feb 2009.

After 5 stressful days finally today, we got the denial notice and it looks like USCIS assumed my Labor under EB3 classification and rejected my I140 where as the labor certificate is approved under EB2 classification. our attorney believes that its the result of an overlook by IO at the amedments made to the original labor.

Please let me know what options I have.


Thanks
GCWarrior

[kaisersose]

Hi Gurus,

I am on 9th year H1B extension.I filed I140/485 concurrently in June 2007 and on April 11th I got the denial email for I140.
No RFE/NOID received.

Here is my case.

PD May 2003, EB2, own labor. During Dec 06, the labor was converted from NON RIR to RIR and amended to accept BS+5 OR MS+3 to reflect the current state.

I-140/485/EAD/AP applied in June 2007, NSC and received EAD/AP and used AP recently. My H1B valid till Feb 2009.

After 5 stressful days finally today, we got the denial notice and it looks like USCIS assumed my Labor under EB3 classification and rejected my I140 where as the labor certificate is approved under EB2 classification. our attorney believes that its the result of an overlook by IO at the amedments made to the original labor.

Please let me know what options I have.


Thanks
GCWarrior

If your attorney is right, then you have nothing to worry about. An MTR will fix the problem.

[GCWarrior]

I hope so too. I donot know the difference between MTR or Appeal and heard Appeal gives more rights than MTR. Any ideas on which route to take?

Thanks

[GC Struggle]

Ask your attorney to file an MTR. (ensure it done within 30 days of denial). When you file an MTR it sent back to the service center that had actually denied the petetion (in your case NSC) asking the IO to revisit his decsion (with any additional information that your attorney would add). If the IO is unable to make a decision, then he will refer your case to Administrative Appeals Unit.

[summitpointe]

Open an MTR ASAP. It sometimes takes lot of time(may be one year) for final decision.

As your H1B is valid for another one year, just to have a support talk with your attorney about filing a PERM labor ASAP.

[GCWarrior]

Thanks for the quick response gurus. Would like to know if anyone else is in the same boat. Also because of this issue, my spouse is resigning her job and going out of US for a H4 stamp. Is there any way we can avoid it as it is a oversight issue?

Thanks

[kaisersose]

Thanks for the quick response gurus. Would like to know if anyone else is in the same boat. Also because of this issue, my spouse is resigning her job and going out of US for a H4 stamp. Is there any way we can avoid it as it is a oversight issue?

Thanks

This is jut my opinion, but I would do exactly this. She should not be quitting her job. If you file an MTR quickly, then she is not really breaking any rules.

Even if you get a 485 rejection notice, it is still OK as long as you file an MTR in a timely manner. The case status will change to "under process" and then you will be fine again as long as your lawyer takes care to extensively document your case so that an IO cannot make a mistake about your EB category again.

In short, just keep your jobs and file an MTR ASAP with correct documentation.

[CoolStrom1]

I thought as soon as I-140 is denied your spouse has to stop working on EAD and go out of the country to renew H4. ?

[kaisersose]

I thought as soon as I-140 is denied your spouse has to stop working on EAD and go out of the country to renew H4. ?

No.

Her EAD is tied to her 485 not to your 140. As long as the 485 status is pending, her EAD is valid. Even if the 485 is rejected, if it is something that can be fixed thru an MTR, then filing an MTR and changing the status back to pending is still fine. It is not necessary to stop using the EAD for that brief period.

[Maverick_2008]

Is it true even for principal applicant? If 140 is denied, isn't your EAD invalidated? In other words, if 140 (immigration petition) is denied, there is nothing to adjust your status on and so even 485 becomes invalid.

Folks, please enlighten me, if I'm missing anything here.

Maverick_2008



No.

Her EAD is tied to her 485 not to your 140. As long as the 485 status is pending, her EAD is valid. Even if the 485 is rejected, if it is something that can be fixed thru an MTR, then filing an MTR and changing the status back to pending is still fine. It is not necessary to stop using the EAD for that brief period.

[amitjoey]

Thanks for the quick response gurus. Would like to know if anyone else is in the same boat. Also because of this issue, my spouse is resigning her job and going out of US for a H4 stamp. Is there any way we can avoid it as it is a oversight issue?

Thanks

I-140 has been denied in my case too. My case is fairly simple, My own labor- India EB3 June 2003. I-140 filed OCT2006 - RFE on ability to pay Nov 2007.
I-140 denied- March 2008. Lawyer says, no basis for denial, as everything is clear, getting paid more than the labor-certification. MTR to be filed soon.
I am not worried at all.

Hearing about a lot of denied I-140s- No basis.
My take: USCIS is overworked, and the quick way to get rid of the backlog- deny enmass.

[BharatPremi]

What is an "MTR"?

[kaisersose]

What is an "MTR"?

Motion To Reopen. Basically having the IO re-examine the case by pointing out that the original application + evidence was correct, but the decision was not.

[scorpioduo]

What is an "MTR"?

MTR=Motion To Reopen the case

[BharatPremi]

kaisersose, scorpioduo


Thanks.

[GCWarrior]

Our attorney contacted the service center today to say that it is service error and asked them whether it is possible to reopen the case without going thru official process. Not sure whether this works or not and also whether I should believe this or not? Any one know the occurances of these in the past.

Thanks