I-140 denied due to lawyer's mistake

[mansurigc]

Hello Experts,

I am B.E. Electronics with 12 years of experience. My I-140 was denied in Dec 2011 with following reason.

The labor certification indicates the primary qualifications for the position are: (1) a Bachelor's Degree (H4) or foreign equivalent (H9) in Engineering (any), Computer Science, or IT (H4-B); and, (2) five years of progressive experience in the specialty (H10). The labor
certification also indicates the alternate qualifications for the positions are: (1) a Master's Degree (H8-C and H10-B). Both the primary and alternate qualifications are modified by the language in Part H14 which states
"Should be willing to travel and relocate in USA and will accept training, experience and education equivalent to Bachelors."

The language of H14 makes it clear that the requirements for the proffered position may be met with combinations of a degree less than a four-year US bachelor's degree and experience and traning. As the minimum requirement are less than a US Bachelor's degree or foreign equivalent, the petitioner's minimum requirements do not conform to the regulatory requirements pertaining to classification as a member of the professions holding an advanced degree or its equivalent.

No petition based on a labor certification showing these minimum requirements can properly be approved under INA 203 (b)(2).

In the view of above, the petition is denied.

My understanding is that the attorney did not use correct language in filing the case.

I need suggestion from the group on this. Please help me to understand this and suggest the next step.

Thank you so much for your time.

[sparky_jones]

Denial appears legitimate. The language of H14 clearly brings down the minimum requirement below EB2 requirements. Definitely a blunder on lawyer's part at the Labor Certification stage.

Options are:
* File MTR to reconsider I-140 in EB3 category
* File fresh I-140 in EB3 category using same Labor Certification
* If EB2 classification is an absolute must (which I am assuming it is), restart at PERM step, this time making sure no such blunder is made in Labor Certification application.


Hello Experts,

I am B.E. Electronics with 12 years of experience. My I-140 was denied in Dec 2011 with following reason.

The labor certification indicates the primary qualifications for the position are: (1) a Bachelor's Degree (H4) or foreign equivalent (H9) in Engineering (any), Computer Science, or IT (H4-B); and, (2) five years of progressive experience in the specialty (H10). The labor
certification also indicates the alternate qualifications for the positions are: (1) a Master's Degree (H8-C and H10-B). Both the primary and alternate qualifications are modified by the language in Part H14 which states
"Should be willing to travel and relocate in USA and will accept training, experience and education equivalent to Bachelors."

The language of H14 makes it clear that the requirements for the proffered position may be met with combinations of a degree less than a four-year US bachelor's degree and experience and traning. As the minimum requirement are less than a US Bachelor's degree or foreign equivalent, the petitioner's minimum requirements do not conform to the regulatory requirements pertaining to classification as a member of the professions holding an advanced degree or its equivalent.

No petition based on a labor certification showing these minimum requirements can properly be approved under INA 203 (b)(2).

In the view of above, the petition is denied.

My understanding is that the attorney did not use correct language in filing the case.

I need suggestion from the group on this. Please help me to understand this and suggest the next step.

Thank you so much for your time.

[mansurigc]

Denial appears legitimate. The language of H14 clearly brings down the minimum requirement below EB2 requirements. Definitely a blunder on lawyer's part at the Labor Certification stage.

Options are:
* File MTR to reconsider I-140 in EB3 category
* File fresh I-140 in EB3 category using same Labor Certification
* If EB2 classification is an absolute must (which I am assuming it is), restart at PERM step, this time making sure no such blunder is made in Labor Certification application.
Sparkly_Jones,

Thank you so much for your valuable response. I appreciate your suggestions and time.

1. In the denial note, when they mention PART H14, does it relate to Labor or I-140?
2. Can I reuse my Labor Cert and refile I-140 in EB2 category?

Best Regards,

[sparky_jones]

Part H14 is in the Labor Certification application for ETA-9089.
You cannot reuse this Labor Cert and re-file I-140 in EB2 category since the H14 language in this Labor Cert makes the job qualification lower than EB2 requirements. You can use this Labor Cert to re-file I-140 in EB3, though.

For EB2, you really need to start a new Labor Cert, making sure that as a whole, the minimum requirements of the job meet the EB2 standard.

Sparkly_Jones,

Thank you so much for your valuable response. I appreciate your suggestions and time.

1. In the denial note, when they mention PART H14, does it relate to Labor or I-140?
2. Can I reuse my Labor Cert and refile I-140 in EB2 category?

Best Regards,

[mansurigc]

Part H14 is in the Labor Certification application for ETA-9089.
You cannot reuse this Labor Cert and re-file I-140 in EB2 category since the H14 language in this Labor Cert makes the job qualification lower than EB2 requirements. You can use this Labor Cert to re-file I-140 in EB3, though.

For EB2, you really need to start a new Labor Cert, making sure that as a whole, the minimum requirements of the job meet the EB2 standard.
That clarifies my concerns. Thank you for being so clear in your response. I have one more question (may be the last one :)).

I had already paid everything for this processing. For restarting the process, lawyer is asking me to pay everything again. Although, this all happened due to his mistake, should I pay again or I can challenge it?

I have already lost significant time and pass through mental stress and frustration.

Regards,

[pak]

That clarifies my concerns. Thank you for being so clear in your response. I have one more question (may be the last one :)).

I had already paid everything for this processing. For restarting the process, lawyer is asking me to pay everything again. Although, this all happened due to his mistake, should I pay again or I can challenge it?

I have already lost significant time and pass through mental stress and frustration.

Regards,

Please donate as you find this forum helpful and working for skilled immigrants.

[sparky_jones]

Technically, you cannot pay for the Labor Cert process. You can only pay for I-140 onwards. If you did, your sponsoring employer is in violation of law.

This is a fairly obvious technical fault. The lawyer clearly did a lousy job here...and this seems to reflect that he/she is either incompetent. or inexperienced. I would recommend that you cut your losses and switch to a more competent lawyer. Definitely challenge this lawyer to recoup some of the expense, but for your own good, go with someone else if you are going to restart the process.

That clarifies my concerns. Thank you for being so clear in your response. I have one more question (may be the last one :)).

I had already paid everything for this processing. For restarting the process, lawyer is asking me to pay everything again. Although, this all happened due to his mistake, should I pay again or I can challenge it?

I have already lost significant time and pass through mental stress and frustration.

Regards,

[stillhowlong]

Hello Experts,

I am B.E. Electronics with 12 years of experience. My I-140 was denied in Dec 2011 with following reason.

The labor certification indicates the primary qualifications for the position are: (1) a Bachelor's Degree (H4) or foreign equivalent (H9) in Engineering (any), Computer Science, or IT (H4-B); and, (2) five years of progressive experience in the specialty (H10). The labor
certification also indicates the alternate qualifications for the positions are: (1) a Master's Degree (H8-C and H10-B). Both the primary and alternate qualifications are modified by the language in Part H14 which states
"Should be willing to travel and relocate in USA and will accept training, experience and education equivalent to Bachelors."

The language of H14 makes it clear that the requirements for the proffered position may be met with combinations of a degree less than a four-year US bachelor's degree and experience and traning. As the minimum requirement are less than a US Bachelor's degree or foreign equivalent, the petitioner's minimum requirements do not conform to the regulatory requirements pertaining to classification as a member of the professions holding an advanced degree or its equivalent.

No petition based on a labor certification showing these minimum requirements can properly be approved under INA 203 (b)(2).

In the view of above, the petition is denied.

My understanding is that the attorney did not use correct language in filing the case.

I need suggestion from the group on this. Please help me to understand this and suggest the next step.

Thank you so much for your time.

Hello mansurigc,

What was mentioned in H8 question, Is there an alternate combination of education and experience that is acceptable? which box checked Yes or No.

[stillhowlong]

Denial appears legitimate. The language of H14 clearly brings down the minimum requirement below EB2 requirements. Definitely a blunder on lawyer's part at the Labor Certification stage.

Options are:
* File MTR to reconsider I-140 in EB3 category
* File fresh I-140 in EB3 category using same Labor Certification
* If EB2 classification is an absolute must (which I am assuming it is), restart at PERM step, this time making sure no such blunder is made in Labor Certification application.

Hi sparky_jones,

My labor certification H14 says "any suitable combination of training, education and experience is acceptable but H8 box is checked as No for the question, "Is there any combination of education and experience that is acceptable. H4 says minimum level of education required is Bachelors. The only difference between my labor and mansurigc's labor is the wordings "equivalent to Bachelors" that is not there in my labor certificate for H14.

what do you think about this?

[gc_when]

1. go thru MTR or file I-140 gain in EB3 so that you can retain ur PD
2. File new PERM with good lawyer in EB2. make sure to show more than 50% job duties are different then ur EB3 PERM.
3. File new I-140 with porting date from old-EB3 I-140.

I hope employer is good and co-operating. If this attorney was from ur employer then look for new attorney on ur own(talk to friends and get good attorney)
Also verify all forms before submission for Eb2 processing.

[mansurigc]

Hello Sparky_Jones,

Thank you so much for your all kind suggestions. I appreciate your time.

God Bless!!!

[sparky_jones]

Hi sparky_jones,

My labor certification H14 says "any suitable combination of training, education and experience is acceptable but H8 box is checked as No for the question, "Is there any combination of education and experience that is acceptable. H4 says minimum level of education required is Bachelors. The only difference between my labor and mansurigc's labor is the wordings "equivalent to Bachelors" that is not there in my labor certificate for H14.

what do you think about this?

You are OK. The "No" response in H8 is indicating that your employer has a BS + 5 requirement, and will not consider MS + 2 as an alternate. This is fine, it still qualifies for EB2. The language "any suitable combination of training, education and experience is acceptable" in H14 (often called the Kellog language) is put to cover the situation where the alien has a 3 year BS as opposed to a 4 year, and they might be trying to qualify for a BS + 5 requirement through a 3 year undergrad degree followed by a 2 year post-grad or equivalent education followed by 5 years of progressive experience. This language does not lower the "BS + 5" minimum requirement, and still keeps the LC at EB2 level. You are in good shape.

What proved fatal in the OPs case was the "equivalent to Bachelor's" language in H14. It immediately lowered the minimum requirement to BS + 0, thereby disqualifying the LC for EB2. A seemingly minor but fatal technical error. Probably a paralegal error that the lawyer failed to notice.

[stillhowlong]

You are OK. The "No" response in H8 is indicating that your employer has a BS + 5 requirement, and will not consider MS + 2 as an alternate. This is fine, it still qualifies for EB2. The language "any suitable combination of training, education and experience is acceptable" in H14 (often called the Kellog language) is put to cover the situation where the alien has a 3 year BS as opposed to a 4 year, and they might be trying to qualify for a BS + 5 requirement through a 3 year undergrad degree followed by a 2 year post-grad or equivalent education followed by 5 years of progressive experience. This language does not lower the "BS + 5" minimum requirement, and still keeps the LC at EB2 level. You are in good shape.

What proved fatal in the OPs case was the "equivalent to Bachelor's" language in H14. It immediately lowered the minimum requirement to BS + 0, thereby disqualifying the LC for EB2. A seemingly minor but fatal technical error. Probably a paralegal error that the lawyer failed to notice.

Thank you sparky_jones for clarification.

[mansurigc]

Hello Gc_When,

Thank you so much for your kind suggestion. I will talk to my new attorney regarding this option. I will be happy if this works because this way I can retain my PD.

Regards,

[continuedProgress]

Sorry to hear, for the benefit of the group - who was your lawyer?

[krishmunn]

Once you are all set with your new lawyer, I would suggest you report the old lawyer to Bar and you may also think of filing a malpractice case. However, since PERM and 140 are technically Employer's petition, I am not sure if you can sue the lawyer OR if your employer need to sue

[mansurigc]

Hi Krishmunn,

My GC was filed through company's lawyer. Company asked me to pay all the cost for GC and I agreed and paid. There is no written communication as such.

After denial of my case, company is suggesting to restart the process and asking me to pay all the cost again.

Even if I decide to move to any other lawyer, I have to bare the same cost again on top of loosing my Priority Date. This brings me real frustration.

I am not sure about how I can challenge the company.. or even if I can challenge at all.

Regards,

[krishmunn]

Whom did you pay the labor cost ? To company or Attorney ? How was it paid ? Through Check ? How did the company ask for money ? through email ?

If you get another job, it is very easy to recover the amount from your employer. Employer cannot accept any money for PERM. Just a complain to DOL is enough to get the money.

[PERM12]

I think there is another technical loophole in this statement. Consider this case:
Company has a policy and will only be going though Attorney A — but as an employee you requested to use Attorney B (who is the top immigration Attorney - very expensive than Attorney A) the company then can be flexible and agree with your request to go with Attorney B on the condition that you bear the differential in the expenses since its the employees request.


Technically, you cannot pay for the Labor Cert process. You can only pay for I-140 onwards. If you did, your sponsoring employer is in violation of law.
.

[belmontboy]

I think there is another technical loophole in this statement. Consider this case:
Company has a policy and will only be going though Attorney A — but as an employee you requested to use Attorney B (who is the top immigration Attorney - very expensive than Attorney A) the company then can be flexible and agree with your request to go with Attorney B on the condition that you bear the differential in the expenses since its the employees request.

Still illegal.

[anu_t]

MansuriGC

forget about taking any action against company or lawyer unless and until u find another job and your new perm is approved. As right now what is imp is you get your perm done and atleast get extension on that basis in a future.

If you are still sticking with the same company and company is allowing you to hire a attorney on your own ,take that opprtunity. file for new labor in EB2 if your job satisfies the eligibility. Hiring ur own attorney will atleast keep things in your hand.
Do not loose any more valuable time.

[mansurigc]

Anu_t,

Thank you so much for your valuable response. I appreciate your reply. I started working in that direction. Trying to get a good lawyer with reasonable fees and good experience.

By any chance, does anyone have a cost break up for complete GC process cost including everything (i.e. ad, labor, i140, fee etc)

Thanks in advance.

Regards,
mansurigc

[dusnt_mata]

You are OK. The "No" response in H8 is indicating that your employer has a BS + 5 requirement, and will not consider MS + 2 as an alternate. This is fine, it still qualifies for EB2. The language "any suitable combination of training, education and experience is acceptable" in H14 (often called the Kellog language) is put to cover the situation where the alien has a 3 year BS as opposed to a 4 year, and they might be trying to qualify for a BS + 5 requirement through a 3 year undergrad degree followed by a 2 year post-grad or equivalent education followed by 5 years of progressive experience. This language does not lower the "BS + 5" minimum requirement, and still keeps the LC at EB2 level. You are in good shape.

What proved fatal in the OPs case was the "equivalent to Bachelor's" language in H14. It immediately lowered the minimum requirement to BS + 0, thereby disqualifying the LC for EB2. A seemingly minor but fatal technical error. Probably a paralegal error that the lawyer failed to notice.

sparky,

This is a GEM of a post. EB2 vs EB3 is all in ETA Form 9089 section H # 8. Lawyers & paralegals should refer to this post while filing labor. every one who is getting perm filed should read this and understand and verify their labor form before signing.

[dusnt_mata]

edit: ETA Form 9089 section H # 8 & #14.

sparky,

This is a GEM of a post. EB2 vs EB3 is all in ETA Form 9089 section H # 8 & #14. Lawyers & paralegals should refer to this post while filing labor. every one who is getting perm filed should read this and understand and verify their labor form before signing.

[gr2k12]

My employer is currently filing a PERM application in EB2. The job requires Bachelor's + 6 years experience or Master's + 4 years experieince. I have a 3-year Masters degree from India MCA (3 year Bachelor's in Physics + 3 year Masters in Computer Science).

In the PERM form ETA9089, should the minimum level required (question H-4) be selected as Master's in order to not have any issues with my 3+3 degrees? My employer's attroney says it is fine to select Bachelor's here and select Master's as alternate combination of education and experieince (question H-8-A). Will this still qualify as EB2 and pose no issues with my 3-year Master's degree?

Thanks for your help!