Dr. William:

I applied Form I-140 and I-485 with the current visa dates. I filed I-140 under EB2, and just got a RFE (Request for Evidence) from an USCIS service center, requesting for evidence to prove my MS equivalence experience for EB2 immigration category.

If I answer the RFE and my I-140 gets denied, will I still be eligible to apply for I-140 in the EB3 category, since my I-485 has already been applied under the current visa dates? Also, Can I cancel the I-140 application under the EB2 category, and apply for an I-140 again in the EB3 category, concurrently with I-485? Please suggest…anticipating your advice.

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Answer: 

If your I-140 application gets denied, your I-485 application will be denied also, together with the I-140 application. But you still can apply for a new I-140 application. To help you provide evidence to prove MS equivalence experience for EB2, please visit our articles:

1) "Bachelor's Degree Plus 5 Years Experience for EB2 and Definition of Experience" and 

2) "BS or MS Degree and Equivalence and USCIS Position"

You can not "cancel" the RFE of I-140 under the  EB2 Category. If you do not reply for the RFE, both of your I-140 and I-485 applications will be denied together. But you still can apply a new I-140 application in the EB3 category.