My I-140's Intent to Deny notice, VERY URGENT!!

[bathuzp]

Hi All,

I had worked for a company from Feb 2006 to Feb 2007 on an H-1B visa. I had applied for an H-1B extension via that company as their software engineer. I was granted that extension. After Feb 2007, i started working at a different company.
I applied for an H1B transfer as a software engineer with my current employer on Nov 27th 2006 through a law firm in Michigan. And last year my current company applied for my GC process in October 2009 under EB2 CATEGORY but with the same designation software engineer [level 2 as suggested by our lawyer] .I obtained a Master’s of Science in Management Information Systems from (University of Illinois at Springfield) in 2008 .I received my I-140 delivery notice in July 2010 stating that they have received his I-140 and it is now in process. I also received an approval on I-131 and I-765 just 2 weeks ago, I got a notice asking me and my wife to go for the biometrics test. Moreover, yesterday i.e. Nov 9th ,I received the EAD card for both me and my wife but unfortunately the very same day I get this Notice of Intent to Deny for I-140 requesting for evidence .
The notice states:
"……..The record contains a form ETA 9089 received by the department of labor on October 2009, thereby establishing a priority date in this matter. The petitioner certified in part H of that form that the proffered position is that of a "Software Engineer" and that the minimum level of education required to enter into that position is a Master's in Computer Science, Management Information Systems, Information Technology.
However the beneficiary also filed a form I-129, Petition for a non-immigrant worker in November 2006 (when i was working for the previous company) as a "Software Engineer". It is noted that the beneficiary did not have a master's degree at that time.
If the beneficiary entered into that H1B employment as a software engineer without a master's degree, the labor certificate will be invalidated since the master's level of education was not a minimum requirement. Please submit the evidence that the beneficiary obtained a master's degree prior to starting work for the petitioner as a software engineer.
The petition may be denied based on the above information. However u r hereby granted 30 days from the date of this letter to submit to this office a written rebuttal to the adverse information."

Also please note that we recently applied for my H1B extension as a programmer analyst as our lawyer had applied with this designation last year.

Now here my questions:

1. I applied for my H1B transfer with my current employer as Software engineer in 2006; I got my masters degree in Dec 2008. After consulting with my lawyer I filed for my GC in EB2 category as Software Engineer level 2 in Oct 2009. Now based on this why do you think we got this RFE? Is this a matter of concern or can it be a mistake? How can we resolve this?

2. The USCIS has asked me to provide evidence of my masters degree in 2006, but that is not true, I received it in 2008, what I have to prove is that my new job requires me to have my masters degree. But how do I do that since my work title is still just a software engineer but level 2 and in my organization level 2 software engineer requires masters degree?!!!

3. What is the worst case scenario? Is there a possibility that my I-140 will be rejected? What should my next step be then?

4. What will happen to all my approved forms (I-131 and I-765). Will they automatically get rejected too if my I-140 is denied?

5. Has anybody else had a similar case like mine? If yes, Please post your case out-comings on this thread.

6. What will happen to my EAD card? Can I change my status to EAD now or should I just wait?

7. Also we applied for H-1B extension as a different designation [Programmer Analyst]. So will that affect my GC process?


We have 30 DAYS to respond to this RFE. If u have any suggestions or advice Relating to my case please post them here ASAP. Please help us out on this.

[txh1b]

1. It is not a mistake and should not be neglected. It is a serious problem. Your company may have to prove that the Job title may be the same but the requirements and job duties are different for the position that was filed as EB2. It is essential that a good lawyer look at the differences in the descriptions. If the attorney filed an EB2 petition with same description/requirement as your H1b, you may be outta luck and have to go through a different labor again but recapture the older PD.
2. You have to prove that the new future job is different from the H1b position or you will be screwed.
3. Restart with a different labor filing again and carefully pick the lawyer.
4. Yes. All documents as a relation to that 485 filing are invalid if the 140 gets denied.
5.
6. No, you should remain on H1b in your best interest to maintain status as a nonimmigrant if the 140 gets denied.
7. Not really

[bathuzp]

Thank you txh1b for your reply! Also do you have any examples on how can we prove the new future job is different from the H1b position. Basically what kind of documents would be perfect to prove that the jobs are different

Thanks

[txh1b]

For now, you have to go with whatever is in the ETA 9089/labor and prove it. Anything else will be of not much use as they will go with the description in your labor.

[bathuzp]

thankyou for your help,

i will try to collect some documents to prove my case.
but do you have any idea what sorts of documents would be useful. i mean would the USCIS be able to understand the projects that i worked on if i send those to them?

[txh1b]

No, your projects are immaterial. It needs documentation that others that worked on same/similar projects had BS plus 5-10 yrs experience could possibly help. Your attorney needs to guide you rather than the forum.