Ac-21

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kapildevbhai

New Member
Need help from the gurus.

I got my I-140 approved on 09/2002. BCIS received my I-485 file on May 15 2003. It is going to be 180 days. I have my EAD and AP both approved.

1. I have a new offer for a "senier design engineer" position - $90K job. My LC job title was "Design Engineer" and I had $65K. Will this create an issue?

2. Should I file for AC-21 or wait until RFE?

Thanks for all the help
 
Originally posted by kapildevbhai
Need help from the gurus.

I got my I-140 approved on 09/2002. BCIS received my I-485 file on May 15 2003. It is going to be 180 days. I have my EAD and AP both approved.

1. I have a new offer for a "senier design engineer" position - $90K job. My LC job title was "Design Engineer" and I had $65K. Will this create an issue?

2. Should I file for AC-21 or wait until RFE?

Thanks for all the help
Click to expand...

AC-21 merely accords portability to an approved I-140 as long as the new position is similar. You are still required to be within the parameters laid out by the relevant LC and the I-140.

The INS regards salary as an important indicator in determining whether the new position is similar, much more so than the title (substance over form rule). In as much as the new position's salary is significantly (almost 40%) higher, it is bound to raise questions on the similarity (or lack thereof) between the two positions, unless you are able to explain the difference by way of differences in geographic location, size of employer, economic situation, sector-specific wage dynamics etc. As a matter of fact, the relevant salary comparison is between the level provided in the LC and the new salary, not necessarily the salary you are currently receiving. In establishing such equivalence, you may encounter greater difficulty as your labor certification appears to be relatively recent.

However, you can derive some comfort by the fact that there is a wide range of opinion on this issue as well as by the fact that there seem to be several cases which received INS's approval despite large differences in salary. I have come across comments by attorneys (Ms. Murthy's come to mind) where they have argued that the salary differences are moot as AC-21 does not expressly require them to be similar. They hold that, as long as the job duties are similar, the salary level only needs to be higher than the threshold established by law to determine "public ward" status. On the other hand, IMMACT 1996 (I hope I have that right) requires employment based immigartion (in EB-2 and EB-3 categories) to be based on the premise of testing the US labor market for the open position and thereby establishing the non-availability of even a minimally qualified US citizen / permanent resident individual suitable to fill the position. Naturally, it would be impermissible for an organization to test the labor market for a particular position and then recruit a prospective immigrant on the basis of such a test to a different position.

The question is therefore one of whether AC-21 triumphs over IMMACT 1996 where there are differing implications between the two statutes. Normally this is resolved by the courts by falling back on congressional intent and if necessary looking at the legislative history behind the two acts. I am no lawyer, but from my layman's perspective, I do not see a conflict between the two laws as AC-21 clearly limits portability to similar positions and, in an open economy, salary levels are indeed an important factor in establishing similarity.
 
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Sankrityayan

I have a question for you, how do you see my situation. I am just taking example numbers below.

JUN2001 - LC filed with $50. with Employer A
JAN2003 - Got raise started making $65 with Employer A
APR2003 - Got Raise started Making $75 with Employer A
OCT2003 - Changed Employer now Making $95 with new employer B.

Switched Employer after 1yr of I485 filing.

Tell me if I come under radar screen.

Where I can find that My salary should be in what range?
Any suggestions??
 
Re: Sankrityayan

Originally posted by Bindaas
I have a question for you, how do you see my situation. I am just taking example numbers below.

JUN2001 - LC filed with $50. with Employer A
JAN2003 - Got raise started making $65 with Employer A
APR2003 - Got Raise started Making $75 with Employer A
OCT2003 - Changed Employer now Making $95 with new employer B.

Switched Employer after 1yr of I485 filing.

Tell me if I come under radar screen.

Where I can find that My salary should be in what range?
Any suggestions??
Click to expand...

Let me begin by making an educated guess that you are probably employed in the IT sector. Let me also make the following assumptions:

1. that your new firm is the same size as your old firm and broadly operates in the same sector.
2. that your LC was certified at $50/hour by the SESA and DOL (as opposed to being filed at that level)
3. that wages in your new geographical location are roughly in line with where the LC certification was carried out

If I were the adjudicator in this case, and my understanding of the law is accurate (I am not claiming so), I would prima facie hold that the two jobs are not the same and put the onus on you to show why I should consider them to be similar. I would use the following arguments to support this:

Between June 2001 and Oct. 2003, the labor market was not doing too well, especially in the IT sector. Wage levels in this sector were actually deflating during much of this period. At best, they seem to have stopped falling in the second half of 2003. On the other hand, the wages in your new job are 90% higher than the one for which the labor market test was carried out. Some normal wage appreciation would have been permissible, but by the quantum jump in the salary level, one can reasonably conclude that you have progressed to a new more senior position or to a different technological platform where the economy may be seeing shortages. Either way, the position that you are in and the position underpinning the permanent labor certification appear to be dissimilar.

For the benefit of bindaas, I would invite others to chime in and show how the above assertion can be held to be unreasonable.
 
Sankrityayan

Your assumptions are right. Except about my location. I am in the same project, same area and with the same client for past 3 yrs.

I am working for the same client even I have changed the employer and doing same thing still, if documents needed, It will be supproted by my Employer and Client(state govt.) both(I mean, I can get letter from them).

If this, you think is a problem, is there any fix for this?

I have already been taking pay checks on my higher salary.
 
Re: Sankrityayan

Originally posted by Bindaas
Your assumptions are right. Except about my location. I am in the same project, same area and with the same client for past 3 yrs.

I am working for the same client even I have changed the employer and doing same thing still, if documents needed, It will be supproted by my Employer and Client(state govt.) both(I mean, I can get letter from them).

If this, you think is a problem, is there any fix for this?

I have already been taking pay checks on my higher salary.
Click to expand...

From your description, it clearly appears that your job responsibilities have not changed much and that is a good thing. The only question that may arise is whether the LC was carried out for the same position, in as much as the salary offered was significantly below what your position normally gets. INS normally does not make an issue of this, but it may help for you to be prepared in case there is an RFE on this aspect.

I cannot think of any easy fix. In all likelihood, there may not be an RFE on the salary issue, and even if there is, the explanation that you provided above in addition to the fact that you are working for a state agency may be sufficient.

Good-luck. Let us hope that fellow members of this forum can come up with some creative answers! The problem, as is evident from the ratio of views to posts on any topic, is that most people here are only takers; they do not want to spare any time to research/analyze an issue and provide answers (or atleast reasonable guesses). There are a few obvious exceptions from whose efforts we have all benefited. Let us hope for more of those.
 
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I am gr8ful to you

Sankrityayan,
I have never seen this kind of support from any body answering my question so Patiently. I am satisfied, I have made an appointment with my Attorney and will talk to her this afternoon. I will update you guys after that.

Just want to share my experience....
As far as LC is concern, My ex-emp was making $100(getting from the client) on me but was giving me $50, and was making the difference, when I fought, I eventually started getting the Raise.

But, now I can see, making more money is also not good for the GC applicant, what a GREAT LAW, that prevent somebody to grow.
 
Re: I am gr8ful to you

Originally posted by Bindaas
Sankrityayan,
I have never seen this kind of support from any body answering my question so Patiently. I am satisfied, I have made an appointment with my Attorney and will talk to her this afternoon. I will update you guys after that.

Just want to share my experience....
As far as LC is concern, My ex-emp was making $100(getting from the client) on me but was giving me $50, and was making the difference, when I fought, I eventually started getting the Raise.

But, now I can see, making more money is also not good for the GC applicant, what a GREAT LAW, that prevent somebody to grow.
Click to expand...

No problem; I have benefited from many posters' experience on these boards and it is only fair that I should make the effort to help others if I can, if only once in a while.

That higher wages should pose a problem at all in this process is an irony, because the whole employment-based immigration system is supposed to be for people of exceptional skills, outstanding scholarship, advanced degrees etc. and it is only natural that candidates of such calibre will progress fast.

But nobody told INS about it, I guess.
 
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Attorney Said...

Guys,
I have talked to the Attorney in details.
As she said earlier, making double the salary from LC is potential problem, I asked her how to fix it?
She said, there is nothing I can do to fix it, Lets not draw INS attention in AC21 letter mentioning the salary, if we receive RFE on salary, we will have strong argument that you are working for the same client and job duties are same.
But she suggeted me not to do stuff like, asking my employer to pay some amount as salary and rest as bonus, or take money in some other way etc..
 
Re: Attorney Said...

Originally posted by Bindaas
Guys,
I have talked to the Attorney in details.
As she said earlier, making double the salary from LC is potential problem, I asked her how to fix it?
She said, there is nothing I can do to fix it, Lets not draw INS attention in AC21 letter mentioning the salary, if we receive RFE on salary, we will have strong argument that you are working for the same client and job duties are same.
But she suggeted me not to do stuff like, asking my employer to pay some amount as salary and rest as bonus, or take money in some other way etc..
Click to expand...

As GC is technically for a future job, one way to fix it, if the situation becomes desperate, is to go back to the original employer for a more reasonable salary level (vis-a-vis the LC) like, say $70 or something. This will put you on more solid legal ground, but obviously will cost you a bit (okay, a lot!).

Just a line of reasoning..
 
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