AkiriPaka

Hello,
My PERM Labor PD is 03/2006. I-140 (EB2) and I-485 was filed in 06/2006. I fall with in the "All Countries" category. I filed for EAD in 09/2006.

I have seen cases in some forums where USCIS has approved some EB2 cases under EB3 due to various issues and there is a possibility that this might happen to my case too.

In the event that my I-140 is approved under EB3 instead of EB2, what will happen to my I-485 and EAD? ( When I-485 was filed in 06/2006 EB3 was retrogressed for All Countries category).

Will my I-485 and EAD be denied because of that? I want to make use of AC21 once my I-140 is approved. Would that be possible under that scenario or will I simply have to wait till EB3 become current for my PD and then file I-485 again?

Your input is appreciated!

AkiriPaka

Anybody? Please ??

Folinskyinla

Hi:

Talk to your lawyer on this one. You ask some sophisticated questions.

Also, I'm not sure that you have read the posting accurately, or if so, that the postings were accurate. In my experience, the CIS has been pretty rigid in going by the box checked -- e.g. if you check EB-2 and you are not an EB-2, the petition is simply denied -- it is NOT "converted" to EB-3. In the past, I've had a habit of filing concurrent I-140's -- one for each classification.

If the EB-2 is denied, your question is a good one.

AkiriPaka

Hi Folinskyinla,

Thanks for your reply. I am posting one of those postings I could find. This guy has actually posted the RFE from NSC where CIS is indiacting that they are willing to approve in EB3 but not EB2 as requested.

**********************************************

I140/I485 concurrent / Sept’05 / EB2 / NSC;
Education: 3 years Bachelor’s of commerce degree from India;
Total experience in the field – 21 years;
Oct’05 - RFE on education and company’s ability to pay;
RFE responded on 1st week of Jan’06 – Documents submitted were: a) Very detailed evaluation b) Companies financial doc c) experience letter from a big company in India where I worked for 7 ½ years;
H1B 7th year extn valid until Oct’06;
Priority date: April 20, 2001

Got 2nd RFE today i.e. on 02/13/2006 as below:
:quote:
You have provided four education evaluations for the beneficiary. One equates to an associates degree, one equates the education to three years of higher education. The two most recent evaluations equate the foreign degree to a similar degree in the U.S. The current evaluations do not provide copies of the information used to equate the education to a U.S. Bachelor of Commerce degree.

The ETA-750 requires three years of college leading to a bachelor’s degree. Based on this, the Service is willing to approve the petition in the E32 professional category. However, based on the conflicting evaluation, the Service is unwilling to approve the case in the E21 advanced degree category.

Please advice how you wish to proceed in this matter.
:unquote:
****************************************

I am interested to know your thoughts based on this posting.
Thanks and Regards.

AkiriPaka

Any updates on this?

Folinskyinla

Hi:

Interesting. That is pretty nice of them. I'm surprised they didn't issue a notice of intent to deny. If the contents of the RFE are correct, it looks like a "prima facie" example of the wrong box being checked.

AkiriPaka

Hi Folinskyinla,

Hmmm ... Why do you say that?

The RFE says Doesn't that mean in the application they actually checked "EB2" category but CIS is not willing to do that, but is offering EB3 instaed?
BTW what's a "prima facie"?

ian-mstm

Google is your friend. Feel free to do some research using your computer.

Ian