Can we convert EB2 to EB3 after a I-140 RFE

[enggr]

Dear Friends/attorneys,
Is it possible to request an EB2 to EB3 conversion after a I-140 RFE? I kindly request you all to help me.

I finished my 4-year engineering course in year 2000 and started working with the company which I got recruited. My degree has year 2002 due to the last supplementary exam. My attorney put the graduation as year 2000 and counted 5 years of experience from there (Because my degree has 2 dates on it). INS is counting only 3.5 y ears of experience after degree completion.

I think the only way I can survive this RFE is to request for an approval under EB3 category. The unlucky part is I didn't get that as an option in the RFE itself (which many people got).
The paper ad as well as labor certification is not specific about "progressive experience" or experience after degree completion. The ad just says Bachelors degree with 5 years of experience.
Please advice me how to respond to this RFE in a safe manner.
This is what the paper ad says "F/T MS Degree or equivalent in Engineering field OR BS Degree or equivalent with five years ex "

EB2 PERM : Aug 2006.
EB2 I-140 (REG) : Nov 2006.
EB2 I-485/ EAD : July 2007.
EB2 I-140 RFE received : Sep 2007.

RFE
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"Please submit evidence which establishes that the beneficiary had at least five years of experience as a software engineer after receiving his bachelor's degree but prior to August XX, 2006. Since your evidence does not indicate that the beneficiary received his bachelor's degree until 2002, this does not appear possible.
If the beneficiary received a degree prior to 2002, please submit a copy of that degree."
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[immi_seeker]

you could try getting a letter from university that you had completed all the requirements for your degree in 2000 but your degree was formally awarded in 2002

[enggr]

Originally Posted by immi_seeker

you could try getting a letter from university that you had completed all the requirements for your degree in 2000 but your degree was formally awarded in 2002

immi_seeker,
That was a nice idea, but I won't get a letter from university saying that the degree requirements are completed in 2000. Also, the transcripts for one supplementary exam (in 2002) may speak against us. Do you think there's a chance? Please reply

[sareesh]

Hello enggr,

I might have the same problem.
where you able to convert to EB3?
Please let me know.

Thanks,
SG

[wandmaker]

enggr: You have completed the course in 2000 (per course completion certificate), but your degree was awarded in 2002 after you completed a supplemental exam. Since the position requires a candidate who qualifies for EB2, USCIS will deny your 140 petition. IMHO, you will have to start your green card journey from scratch.

[enggr]

Originally Posted by sareesh

Hello enggr,

I might have the same problem.
where you able to convert to EB3?
Please let me know.

Thanks,
SG

Sareesh,
I just filed the RFE response this week. Will take a few days to know the result. One attorney said it will take 6 months. Some said 1 month. I'm keeping my fingers crossed. Will let you know the result

[enggr]

Originally Posted by wandmaker

enggr: You have completed the course in 2000 (per course completion certificate), but your degree was awarded in 2002 after you completed a supplemental exam. Since the position requires a candidate who qualifies for EB2, USCIS will deny your 140 petition. IMHO, you will have to start your green card journey from scratch.

Hi Wandmaker,
thank you for paying attention to my thread. Did you mean the position requires a EB2 candidate because of the 5 years of required exp?
I do have 5 years of exp, but its not progressive to graduation due to the 2000, 2002 issue. Also on the labor certification the employer has mentioned that he is ready to accept any alternative combination of experience/skills. Will this help? Please advice

[enggr]

Friends,

My I-140 got denied after the RFE response. In response to the RFE in September my lawyer responded to the RFE in November and the result came early this month (march 2008).
In the RFE response in last November my lawyer told USCIS that the category was marked wrong as EB2 where the case should be actually under EB3.
USCIS denied the application saying that application cannot be approved under EB2 and request for EB3 cannot be entertained at this point.

The following are the words from USCIS denial notice.



"The petitioner indicated that it had made an error in marking the petition form and that the petition should be considered one requesting the beneficiary's classification under a different section of law. However, since the petition was filed for second-preference classification and was initially adjudicated on that basis, USCIS will not at this stage consider it for some other classification.
In accordance with a USCIS announcement dated on May 23, 2007, the petitioner may elect to file a new petition on the beneficiary's behalf requesting a different visa classification but supported by the instant labor certification.(A motion making this request would be denied.) If the petitioner elects to persue this option, it should include a cover letter which explains the request, include a copy of this denial notice, and clearly report that the original labor certification is with LIN XXXXXXXXXX housed in AXXXXXXXXX. "


Also mine and my wife's I-485 got denied on the same day. In the denial notice of I-485 USCIS has mentioned that "The regulation does not provide for an appeal to this decision."

We are planning to file a new labor certification by end of this month as the current one is 99% a gone case

As you all know I was trying to save this application to save my wife's EAD.

Please help me with one of the options below.

Regarding my rejected I-140 I have two choices as per USCIS and my lawyer. Either of them should be filed 33 days from first week of march. Doing both of the below options at the same time will result in automatic rejection of both

1) Appealing the decision
Pros: My wife gets a chance to win her EAD back which is a big win for us
Cons: USCIS has indicated in the rejection notice that they are rejecting the I-140 because it does not qualify for EB2. they added that our request for converting it into EB3 cannot be entertained at this moment of time. So chances of winning the appeal is small compared to filing new I-140 as per my lawyer

2) Applying new EB3 I-140
Pros: Chances of getting an approval under this new EB3 I-140 is more compared to appealing the old EB2 application (the old application also includes and the request to convert EB2 into EB3)
Cons: Definite loss of my wife's EAD. Also since the labor is on Aug 2006 they have a common expiration date of Jan 2008. All labors from June 2007 (somewhere around that time) expire 6 months of the approval date and I-140 within that 6 months only will be considered for processing. Since we have passed the Jan 2008 period my lawyer is saying the new I-140 can also get rejected. the only argument we can place is, the processing time taken/length of old I-140 processing and the suggestion given on old I-140 denial notice dated march 1st week.

I am wondering whether we can do an MTR (Motion to re-open on the old application). This option is not mentioned by USCIS or lawyer. I am wondering whether this option will eliminate the appeal/new I-140 application within 33 days previlege

. My answer to my attorney regarding the next course of action depends on your advice(s) very much.

Thanks in advance and I really appreciate who posted replies to my questions earlier.

Enggr:

Labor approved 2006 Aug EB2
I-140 applied 2006 Nov EB2
I-140 RFE 2007 Sep
RFE response 2007 Nov
I-140 denied 2008 Mar

[hsd31]

From your post it looks like option 1 is a no-go. You will waste more time and you will have to start back at one again if the appeal is rejected (which it most likely will, given that the facts are against you). It will be more advisable to re-start the process and go with option 2.

I will also suggest that you get yourself a new lawyer. You should have never applied in EB-2 given you had a degree dated 2002.

[indianabacklog]

The detail is in the advert for the position. It is very specific in its requirements and you do not match them.

I was in exactly this position in 2002 and the appeal such as you suggest as second option failed and wasted six months.

I had to start the entire process again. The most frustrating part for me was the department of labor had assisted my employer with the advert and the alteration they made to the advert was the thing that screwed me in the end.

By virtue of the PERM system now you are really not going to lose all that much on your priority date and you could have another I140 filed before any appeal is even dealt with.

[rani77]

I saw your post completely. It looks like that is a no go but you can try two things open a MTR and file an 140 in EB3 .Also parallely start another new case from scratch . You PD is Aug 2006 which may not seem a big advantage now but in a couple of years of time it will be. This may also cost a bit more so apart from financial aspect it doesnt hurt more to do these do things parallely. You got to take the call. Also make sure that you hire a good /well know attroney , your case typically indicates that the attorney made the wrong decision in filing