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  #1 (permalink)  
Old 10-02-2015, 03:57 PM
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mattbiotech is on a distinguished road
Default I 140 Denial

Hello all ,

I am in my H1B 3r year and my employer has filed my I 140 in May and I waited for 5 months and USCIS issued me straight Denial.I have filed in EB2 and I have Master Degree from USA.

My attorney said that USCIS is claiming that the position does not require Masters and hence denied. However my attorney is saying that the decision is erroneous and he feels that that once determination is made by the Department of Labor regarding the education requirements, USCIS cannot disagree . He is recommending to file an appeal and he said there is also option to Refile in EB3 .

The requirement used in the perm was Masters Degree plus 0 yr exp or BS with three year exp.

I am confused want to know which way I should adopt Is it better to listen to attorney and appeal or ask him refile in EB3?

Is there any body in similar situation ?

Thanks in advance.
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Old 10-02-2015, 04:16 PM
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Quote:
Originally Posted by mattbiotech View Post
Hello all ,

I am in my H1B 3r year and my employer has filed my I 140 in May and I waited for 5 months and USCIS issued me straight Denial.I have filed in EB2 and I have Master Degree from USA.

My attorney said that USCIS is claiming that the position does not require Masters and hence denied. However my attorney is saying that the decision is erroneous and he feels that that once determination is made by the Department of Labor regarding the education requirements, USCIS cannot disagree . He is recommending to file an appeal and he said there is also option to Refile in EB3 .

The requirement used in the perm was Masters Degree plus 0 yr exp or BS with three year exp.

I am confused want to know which way I should adopt Is it better to listen to attorney and appeal or ask him refile in EB3?

Is there any body in similar situation ?

Thanks in advance.
Depends on your future plans. One strategy is to file in EB-3 in a premium to lock your PD. Wait for 6 months and whenever you change employer, file in EB-2 with new one keeping the old PD. Also check with lawyer how long the appeals take?
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Old 10-02-2015, 04:24 PM
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Thanks wetfeet.

I think if i refile in EB3 I cannot file premium if the PERM is older than 180 days.

The appeals would actually take 2 -3 years but recently USCIS updated the website saying the appeal would get decision within 6 months.
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Old 10-02-2015, 04:28 PM
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Quote:
Originally Posted by mattbiotech View Post
Thanks wetfeet.

I think if i refile in EB3 I cannot file premium if the PERM is older than 180 days.

The appeals would actually take 2 -3 years but recently USCIS updated the website saying the appeal would get decision within 6 months.
I think you are right about the premium thing, still check with lawyer. It boils down to whether you will be looking for a job change in future or not. If yes, then you anyway have to start the process again and at that time you can go with EB-2. Better to have a bird (EB-3) in hand than 2 in bush.
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Old 10-02-2015, 04:38 PM
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I was in similar situation few years back (2011). That time it was taking appx 1 year for appeal. But I can also say that you will not get any positive response after appeal, after 6 months or whatever time.
I used that 1 year to start my parallel processing of 2nd PERM so that i could renew my H1 after getting approval of 2nd PERM's approval. Eventually I switched the employer because I also think all these denials etc are dependent on your employer + attorney.
I wish and hope no one has to go through that...
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Old 10-02-2015, 05:09 PM
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Thanks Raholos.

it is so frustrating getting a straight denial after that much wait!!
were you denied for the same reason , "Masters not required for this position"
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Old 10-02-2015, 06:25 PM
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Remember your lawyer will get to make money when he files for appeal. If rejected, he will restart the process from scratch and will again make money. It is a win win for him.

Also keep in mind that both EB-2 and 3 are severely retrogressed, there is no real advantage of one over other in future based on the conditions now. However with an approved I-140 you will have several benefits - PD retention, 3 yr H1B extensions, H4 EAD, and if EAD for I-140 get approved, then that too.

So keep all these in mind while making a decision.
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Old 10-02-2015, 09:43 PM
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Quote:
Originally Posted by mattbiotech View Post
Thanks Raholos.

it is so frustrating getting a straight denial after that much wait!!
were you denied for the same reason , "Masters not required for this position"
Yes It is frustrating. Mine was denied after 2.5 years of wait because the initial ad placed by my HR on their website did not have contact number of HR. Doesnt that sound childish?
Anyways, have faith, you will get through this.

Yes, attorneys will make money, so will USCIS, DHS etc. You have to be calm and take the decision. Decide if money is important at this moment for you, or to get through this....
Wish you luck...
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