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  #1 (permalink)  
Old 08-14-2013, 10:19 AM
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Default Possible i - 140 denial .. Labor approved..urgent help!!!

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 does not count. 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. Does the labor need to be re-filed in order to correct this process?

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 + 7 years work exp with current employer 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 and ideally they should have applied for the eb2 category.

Please share your thoughts!!
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  #2 (permalink)  
Old 08-14-2013, 10:29 AM
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imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute imh1b has a reputation beyond repute
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Why did you choose that lawyer and why are you continuing with him knowing he is wrong? Are you paying him too?
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  #3 (permalink)  
Old 08-14-2013, 10:58 AM
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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)

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.

....
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  #4 (permalink)  
Old 08-14-2013, 11:23 AM
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You have a major problem. The lawyer has royally screwed your case.

If your employer supports, change the lawyer; if not, I suggest look for a different employer ASAP. You can file the 140 and almost at same time file for H1 extension/new H1 based on that 140. That way, even if 140 is denied, the H1 remains valid for some more time.

Another options is --- if you have spent time outside US (on vacation etc.) , recapture that time and see if you can get a new Labor before your H1 runs out.

You need an Attorney consultation and not a forum. Unfortunately, since PERM and 140 are employer's petition , you do not have a Attorney client relationship with the Lawyer, otherwise I Would have said complaint at bar against that lawyer
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  #5 (permalink)  
Old 08-14-2013, 11:26 AM
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Well just to also clarify, my employer has filed for labor , not lawyer..lawyer hasnt come into play till now for I-140...and I have done my past 2 h1b thru him and hes a very reputed lawyer in the area.
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  #6 (permalink)  
Old 08-14-2013, 11:41 AM
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Quote:
Originally Posted by shoonya View Post
Well just to also clarify, my employer has filed for labor , not lawyer..lawyer hasnt come into play till now for I-140...and I have done my past 2 h1b thru him and hes a very reputed lawyer in the area.
There is nothing called 'reputation'. People throw this word around a lot because the lawyer may have a good website or have a popular newsletter. Writing a newsletter does not mean it is equal to writing good application that will mean no RFE or denial for you. Get that first.

It is amazing that your lawyer has put you in problem you and you still call him reputed. Find another expert lawyer in I140 filing is what I would tell you.
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  #7 (permalink)  
Old 08-14-2013, 11:47 AM
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Quote:
Originally Posted by shoonya View Post
Well just to also clarify, my employer has filed for labor , not lawyer..lawyer hasnt come into play till now for I-140...and I have done my past 2 h1b thru him and hes a very reputed lawyer in the area.
Well that caused the problem. Do you have a 4 year Bachelors ? I suggest go for a second opinion with another lawyer and see if it can be successfully downgraded to EB3 , if required
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  #8 (permalink)  
Old 08-14-2013, 11:48 AM
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Quote:
Originally Posted by imh1b View Post
It is amazing that your lawyer has put you in problem you and you still call him reputed. Find another expert lawyer in I140 filing is what I would tell you.
His lawyer did not put him into problem -- his Employer put him into problem ... the consequence of not using a lawyer and saving couple of bucks.
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  #9 (permalink)  
Old 08-14-2013, 11:58 AM
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Quote:
Originally Posted by krishmunn View Post
Well that caused the problem. Do you have a 4 year Bachelors ? I suggest go for a second opinion with another lawyer and see if it can be successfully downgraded to EB3 , if required
I have a 4 year bachelors from india, and Masters from US.
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  #10 (permalink)  
Old 08-14-2013, 12:07 PM
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Quote:
Originally Posted by shoonya View Post
I have a 4 year bachelors from india, and Masters from US.
You have a US masters. You should find a new job and get EB2. EB3 sucks.
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  #11 (permalink)  
Old 08-14-2013, 12:15 PM
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My lawyer just suggested apply for h1b recapture time right now..that puts me safe till feb 2014.....submit this i-140 anyway regular processing as it "might" get approved...and last but not the least start a concurrent refiling of PERM in the way its intended to be...
switching jobs right now is not an option for me....if the i-140 does get approved say by nov 2013 im good to apply for the 3 yrs h1b....if it gets denied we have this new PERM in process but my stay gets compromised after feb 2014 for couple mnths i guess....


any thoughts?
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  #12 (permalink)  
Old 08-14-2013, 12:25 PM
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That is the best suggestion . Your lawyer seems to know what he is doing.

If your new PERM gets approved before Feb 2014, you can file a 140 PP and be all set. If it is not approved by then, you will have to change status or leave US for a couple of months and enter either after it (and 140 PP) is approved OR the labor is pending for one year (you can then get a H1 for one year).
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  #13 (permalink)  
Old 08-14-2013, 02:36 PM
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Im still trying to understand clearly though. The min job requirement being bachelors + 60 mnths experience is not really the issue...the fact that its marked NO against "Alternate combination of education and experience acceptable" makes my masters + 7 yrs exp here not approvable for this job offer??? Is that right? As it would be perfectly natural of this job offer to have min education as bachelors + 60 mnths.
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  #14 (permalink)  
Old 08-17-2013, 02:49 PM
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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.
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