Options if petition denied
 

I'm beginning to think that my I140/EB1A petition is going to be denied. Hopefully this thread will not be required but I want to be prepared anyway. Given that I've spent so much time and money on it, and seem to be fairly close to getting it judging by the comments in the RFE, I'm not going to give up easily.

The questions I've not been able to find answers to are:
1. Can I re-apply, starting afresh with a new I-140 but exactly the same category of EB1A?
2. Does my existing application affect the new one in any way - does it even need to be mentioned?
3. Can I apply immediately again, or is there any benefit/harm in delaying? (it would be a few weeks to get everything together)

Call me stupid but second time round I will do it myself because I now know what goes into the evidence bundle and I can't afford more attorney fees. However, I can afford the $600 or so to submit a new I-140 myself. I would also do it under regular processing (I did premium last time) at a different Service Center. In fact, I actually want it to go slower this time because of my wife's pregnancy and some surgery I need doing on the NHS.

I am not keen on retaining my current attorney since he has stitched me up yet again by leaving the reply to the RFE until the last minute, then falling ill and unable to finish it until 9pm yesterday (Monday) with the RFE due this Wednesday, meaning I was unable to review the cover letter in time or correct the mistakes in it - all syntactic/grammar rather than factual luckily. It's an okay letter but it's not great. I just hope that UPS or whatever don't suffer any delays in delivering it to Lincoln NE.

Another reason I think it may be denied is the particular officer number reviewing my case has a "100% RFE denial rate" - I find that hard to believe, but (s)he could well have a reputation, not helped by a less-than-stellar RFE reply.

Thanks.

Re: Options if petition denied
 

Forgot to say: the appeals process is expensive (or the attorney to handle it is) and doesn't seem worth the effort from researching it; plus, I have additional evidence which was inadmissable under the RFE (no new evidence after filing date).

Re: Options if petition denied
 

Sounds like you are both jumping the gun and could do with a change of lawyer.

I know in other categories refiling is a better option than appeal so it would seem quite logical for it to apply here as well.

Re: Options if petition denied
 

Yes.


You may need to mention it, but it likely won't affect the new one.


Yes.


You can certainly do regular processing, but I'm not sure you can change Service Centers - there's usually jurisdictional issues involved.


I'd be interested to know you or your lawyer got that information.

Ian

Re: Options if petition denied
 

Most definitely, to both!

Ok, thanks.

The original was done at Nebraska which, as you say, was limited to that because of a combination of factors. As I understand it, with a new filing without PP, I could use Texas instead. The aim - random though it is - is to get a more lenient officer. There may well be rules but it's also highly subjective and thus open to interpretation. Nothing like legalised gambling one's life, eh?!

It is a bit of a broad and unsubstantiated statement but it's interesting because I was Googling the NSC/LLJ on the front of the RFE, out of curiosity mainly. But up popped the exact number as mine which is apparently the officer number, and I hadn't even searched by particular number yet there was somebody talking about just that one.

Of course, it could also be a generic form number or something completely unrelated. Those of us in the laps of the USCIS gods do like to clutch onto the flimsiest of straws and speculate! :o

Thanks re the other comments.

Re: Options if petition denied
 

Hi:

Other than you, none of us have seen your paperwork. I know for a fact that a common complaint among immigration attorneys is the existence of "RFE Hell" -- no matter what the application is, it gets an RFE. Lets put it this way, attorneys have modeled their applications based upon the past RFE's in other cases -- and damn if they don't get an RFE with identical "boilerplate" from the very RFE that was the model!

I often tell the story of the very first visa petition case I did back in the 70's. It was a family petition case for identical twin daughters. The birth country has "Family Census Registers" in lieu of individual birth certificates. In other words, the petitions were identical but for the name. They were prepared by the same attorney and filed at the same time. One was approved in 21 days. The other generated an RFE nine months later. I went from super attorney to an idiot in the eyes of the client [not that I blame him].

Some cases are just "snake bit" -- for no reason at all.

You may simply want to have a consultation with a second attorney. It may be that the first attorney screwed it up. It may be that the second attorney may have a different opinion on how to have proceeded in the first place. It may be that the first attorney did it perfectly.

Again, none of us have seen your paperwork or know the details of your case. It is your case so your concern is justified. But you may just be fine.

Re: Options if petition denied
 

Thanks Mr F. I don't think he's bad in terms of the legal profession, just disorganised and inattentive on the client side. The original petition cover letter was actually pretty good (to me) and I have learnt a lot in the process - from him as well as elsewhere. That's why I feel I could reconstruct and resubmit my case on my own. Much as I would like a second opinion, I simply cannot afford it.

I hear you about the identical cases and this is where I hope that a second submission might help.

I started this thread as a kind of mental preparation for failure. Apologies if anybody thinks I'm doing this as a hypothetical question. All the responses will no doubt be useful to somebody - hopefully I won't need them but one can never tell.

Thanks

Re: Options if petition denied
 

Well, it looks like my worst nightmares may come true. The attorney sent the packet by express overnight delivery yesterday and the USPS tracker currently reports it as last seen in San Diego. Last time it went from there to Omaha and then on to Lincoln, but so far it may not have even reached Omaha yet if the same route is taken and the tracker is to be believed.

My attorney will blame USPS; USPS will give him his (my) money back; I'm left with 9 months of hard work down the drain, not to mention cost.

But is there a glimmer of hope in an apparent 3 day grace period? Postings elsewhere refer to a FAM 8 CFR 103.5(b). Let's hope so before I finish my attorney-shaped pin cushion.
:mad:

Re: Options if petition denied
 

Citation is in error -- FAM and CFR are two different beasties. 8 CFR 103.5a(b) is what you are thinking of.

BTW, as a matter of rant, the USPS tracking system sucks. FedEx or UPS are generally pretty accurate. Further BTW, in this day and age, three days strikes me as pretty niggardly. The more modern approach is California Code of Civil Procedure 1013a. Also, the "mailbox" rule works for IRS.

Re: Options if petition denied
 

It reached Omaha last night so I'm assuming it will be delivered today (one day late). Do those words mean what I'm led to believe they mean in that I should be ok?

Re: Options if petition denied
 

"Mailbox rule" generally means that proof of date that the document was mailed, rather than when it arrived at it's destination, will be accepted that you mailed it within the time limit.

Re: Options if petition denied
 

Ok, so hopefully I'm "good to go"! Package arrived this morning (local time); no update on the case status checker yet.

Back on the tenterhooks again. :unsure:

Re: Options if petition denied
 

Or you could just have a beer and relax...there's nothing you can do about it now anyway!;)

Re: Options if petition denied
 

Funnily enough...! :thumbup: Yes, you're quite right.

Re: Options if petition denied
 

And it looks like I don't! :thumbsup: APPROVED! Wow, that was quick.