A question that comes up frequently is what to do if the I-140 Petition was filed with the wrong preference category checked off. The problem is especially critical in cases where the preference petition is accompanied by an adjustment of status. If the petition is denied, the adjustment will be denied, and the client will fall out of status.
There is authority to correct the preference petition, however, prior to the final decision. According to the NCS Liason Meeting of January 25, 2007, NCS stated, "unless there is a clear evidence in the fie to indicate that the wrong classification was marked on the form (e.g., a cover letter that indicates a different classification), the NSC must adjudicate the petition based on the classification requested."
In other words, if the petitioner sends a letter to DHS advising that the wrong preference category was selected, the DHS should adjudicate the petition according to the employer's request in the letter, and not according to the selection on the petition.
Unfortunately, the procedure is not well known, and an employer may receive a denial, despite the existence of a letter in the file clarifying the category being requested. If a denial is issued, the Employer must file a motion to reconsider or an appeal, to bring the issue to the examiner's attention.
Another tip is to file a new petition, identical to the first, with the proper box checked off, and request that the petition be "attached" to the adjustment file pending.
I recently inherited a case of an alien whose petition had been filed with the wrong preference category. He had worked with three lawyers prior to coming to me for an opinion. The first lawyer had filed a 3rd preference labor certification based case with 1st preference multinational selected. The DHS send a remand requesting documentation of 1st preference multinational eligibility. The client brought this to a second attorney for an opinion. Since the petitioner and the alien were not qualified for a 1st preference petition, the attorney should have realized the mistake, but, unfortunately, the attorney did not have a clue and tried to submit the documentation fo a multinational manager! After the denial, the client went to a second attorney who filed a motion to reconsider of the denial of the petition, thereby compounding the mistake. And finally, the alien went to a third attorney, who appealed the denail of the motion to reconsider to the AAU! Nobody had taken a moment to read the original case carefully and determine that the 1st preference petition was incorrect and that it had to be amended before it could be approved as a 3rd preference case.
As explained above, the amendment could have been made either by sending a letter to correct the mistaken preference category, or even by filing a new petition to be "connected" to the existing file at DHS. To make things worse, the alein had been out of status for 3-4 years, based on the mishandling of his case.
Since there was no opportunity to resolve the problem with a letter, with an appeal pending at the AAU, I decided to file a new petition. The new petition was approved, and that part of the problem was resolved.
Unfortunately, the client had fallen out of status and was ineligible to adjust and was subject to a bar of 10 years for unlawful presence. The client's wife had fallen out of status earlier, but that occurred when the alien still had an H-1B, when the then-attorney failed to file a separate extension for the spouse with form I-539.
We tackled the problem under a provision in the regulations that permits an alien to apply for adjustment of status, even being out of status, if it was not due to the alien's fault. This required us to document the mismanagement of his case by former "professionals." Since the mismanagement was egregious, we were able to prove that successfully, and after a lengthy processing procedure, the alien received a green card in the mail last week!
This is one of those stories that warms the heart and makes us feel good about things.