My I-140 was denied last year. My attorney sent the appeal right away. Since one of my colleagues got GC this month (similar position, almost same filing date, same company attorney), I was wondering what I should do.
Background:
Position: Software Engineer in Bio-info
Education: MS in Information systems in USA
L/C filed: 1/2004
L/C Approved: 10/2006
I-140 and I-485 filed concurrently: 11/06
I-140 denied: 7/2007
I-290B filed: 7/2007
Here are the details of decision letter:
--- Begining of the quote
Decision
This petition, filed on Nov. 15 2006 seesk to classify the beneficiary as an immigrant under section 203(b)2) of the Immigtration and Nationality Act, as amended. That section provides for the allocation of immigrant visas to qualified immigrants who are members of the professions holding
advanced degrees or their equivalent or who because of their exception ability in the sciences, arts, or business, will su*****stantially benefit prosperctively the national economy, cultural or educational interests, or welfare of the United States and whose services in the sciences, arts, professions, or business are sought by an employer in the US.
The petition indicates that the petitioner desires the services of the beneficiary as Software Engineer.
Since no representations have been made that the beneficiary has exceptional ability, consideration of this petition will be limited to the issue of whether the petitioner seeks the beneficiary's services in a position which requires a professional with an advanced degress.
Title 8, Code of Federal Regulations, Part 204.5(k)(2) defines "advnaced degress" as any US academic or professional degress or a foreign equivalent degress above that of baccalaureate. A US baccalaureate degress or a foreighn equivalent degress followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degress.
The service will not evaluate the equivalence of education and experience to a doctorate. If customarily required by the specialty, the alien must have a US doctorate or a foreign equivalent degress.
Title 8, code of Federal Regulations, Part 204.5(k)(4) states in pertinet part "... The job offer portion of an individual labor certification, Schedule A application, or Pilot Program application must demostrate that the job requries a professional holding an advanced degress or the equivalenet or an alien of exceptional ability."
Form ETA-750, Application for Alien Employment Certification, which was certified by the DOL on Jan 20, 2004, indicates that the qualifications for this position are a Master's degress in Computer Science, Information Systems, Biology, chemistry, or related field. The petitioner also states they will accept an "educational equivalency evaluation prepared by a qualified evaluation service or in accordance with 8 CFR 214.2(h)(4)(iii)(D)." The peitioner therefore has not established that the position requires at least an advanced degress, a US baccalaureate degress or a foreign equivalent degress followed by at least five years of porgressive experience in the specialty to be considered the equivalanet of a master's degress or an alien of exceptional ability. It should be noted that 8 CFR 214.2(h)(4)(iii)(D) pertains to petition involving a H1B classification and is therefore applicable to nonimmmigrant petitions but not applicable to immigrant petitiions, thus it is irrelevant to this filing.
In evaluating the beneficiary's qualifications, the Service must look to the job offer portion of the labor certification to determine the required qualifications for the position; the Service may not ignore a term of the labor certification, nor may it impose additional requirements.
The burden of proof in these proceedings rests soley with petitioner. In this case the petitioner has not sustained that burden.
----End of Quote
Looks like the officer thinks that my L/C's requirement doesn't specify Master's degree since it says the equivalent is ok, thus he denies my I-140 based on that I didn't sustain the burden to prove that my position requires Master's degress (details in the bold).
Questions:
1. Should I contact the congressman or senate about this decision since my colleague who has the similar situation gets his GC this month. We should use the same job ad since we filed at the same time.
2. My attorney doesn't encourage me to contact congressman or senate. Is any disadvantage to contact them? Does the attorney mess up the requirement in the job ad for LC?
Any additional thoughts on how to handle this situation?
Thank you in advance.
J.