Was the original labor certification filed with the State on or before April 30, 2001? Is this the same petitioner and beneficiary? Will the labor certification be considered "approvable at the time of filing?" In general, there are a lot of issues to consider. An experienced attorney should review the documents.

If you did not enter the country until after December of 2000, then we need to know whether another approvable petition was filed on or before January 14, 1998. Sometimes, people are confused about Section 245(i). If you do not qualify, you will have to consider other options to lawful immigration.

The above is general information and does not create an attorney-client relationship.

I think you should listen to an immigration lawyer's advice about whether to let the appeal process play out or to refile based on prior paperwork. Show all the paperwork to a skilled immigration attorney to go through the steps necessary in your case. Delays of several months can happen if you proceed incorrectly.

Check with a lawyer in your locale to discuss more of the details.

Good luck to you.

God bless.

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You can file a new I-140 based upon the old labor certification even though the original I-140 was denied as the denial of the I-140 is technically without prejudice. You will still need to establish your qualifications for the position and your employer's ability to pay from the date the labor certification was filed, all the way to the present day (not to when the original I-140 was filed). You will also need to make arrangements for USCIS to obtain a duplicate labor certification from the Department of Labor.

Whether you will need to depart the U.S. to obtain an immigrant visa cannot be determined from the facts you present. You should consult with an immigration attorney to review the filing of a new I-140 and whether you will have to eventually depart the United States if the I-140 is approved in order to obtain an immigrant visa.