AC21 Salary Difference Issue

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coolmanasip

Registered Users (C)
hello Friends....need some opinion here....... first, I have been active in all IV inititives, paid off and on money, etc.....this is for people to save time to find out whether I have been active or not! Must say some really intelligent and well read immigrant community......need some opinion from you experts!!

My story.....(Labor Approved - November 2006, I-140 approved - January 2007, I485 applied on D day July 2, 2007).....Lately some uncertainity and unstability at current workplace so pondering of a new opportunity using AC21......the job title is not same but is similar.....job duties on the offer letter are same as mentioned on the labor certificate word for word.....so far so good.......now here comes the pickle about salary......

When labor was approved the salary mentioned was 53K.....when I-140 was approved salary mentioned was 55K.......The salary mentioned on the employement verification letter for I-485 was 70K (saw a big jump in that one year owing to passing some certification exams).....and am currently making about $75 K today at the sponsoring employer........the prevailing wage for the labor position in the region as per FLC data center today is $67K......and the new offer is $77K.......too many numbers!! Now here are questions for your expert opinion......

1. When I spoke to a well known lawyer, he mentioned that the salary USCIS looks at is the salary at the time of labor approval/I-140 time.... Now if you compare the new offer 77K with the labor/I-140 salary of 55K....that is a 40% jump and is I think dangerous territory!! Any thoughts on this issue??

2. The prevailing wage for the labor position today, when the new offer will be accepted, in 2008 as per the FLC data is $67K....now can we defend the salary up to $68K based on this increase in prevailing wage? Or will the USCIS still look at the prevailing wage in 2005 and say that the standard is 55K??

3. The lawyer asked me to get me an offer letter with language, "the compensation will be at a minimum $-----" so I got another offer letter from the new employer saying the salary will at minimum be $67K (Today's prevailing wage)........now the real salary will be 77K ....technically this is not wrong because the offer letter says minimum 67K....but if the USCIS looks at paystubs and W2 they will see that the rate is 77K and not 67K.....will this be considered as fraud as far as USCIS is considered???

4. Overall the salary goes up in our industry at about 5-7% a year.....Now the labor was done three years ago in 2005....at 7% annual increase.....can we not defend 67K as per industry norms.......or will USCIS look at the hard line 55K number as far as similar position is considered??

5. Just to avoid complications....I may also accept 67K as salary for a few months and then work out a deal to increase later.....any thoughts...

Your expert opinions will be a very much valued Inpu....please please respond with your thoughts......
 
coolmanasip said:
hello Friends....need some opinion here....... first, I have been active in all IV inititives, paid off and on money, etc.....this is for people to save time to find out whether I have been active or not! Must say some really intelligent and well read immigrant community......need some opinion from you experts!!

My story.....(Labor Approved - November 2006, I-140 approved - January 2007, I485 applied on D day July 2, 2007).....Lately some uncertainity and unstability at current workplace so pondering of a new opportunity using AC21......the job title is not same but is similar.....job duties on the offer letter are same as mentioned on the labor certificate word for word.....so far so good.......now here comes the pickle about salary......

When labor was approved the salary mentioned was 53K.....when I-140 was approved salary mentioned was 55K.......The salary mentioned on the employement verification letter for I-485 was 70K (saw a big jump in that one year owing to passing some certification exams).....and am currently making about $75 K today at the sponsoring employer........the prevailing wage for the labor position in the region as per FLC data center today is $67K......and the new offer is $77K.......too many numbers!! Now here are questions for your expert opinion......

1. When I spoke to a well known lawyer, he mentioned that the salary USCIS looks at is the salary at the time of labor approval/I-140 time.... Now if you compare the new offer 77K with the labor/I-140 salary of 55K....that is a 40% jump and is I think dangerous territory!! Any thoughts on this issue??

2. The prevailing wage for the labor position today, when the new offer will be accepted, in 2008 as per the FLC data is $67K....now can we defend the salary up to $68K based on this increase in prevailing wage? Or will the USCIS still look at the prevailing wage in 2005 and say that the standard is 55K??

3. The lawyer asked me to get me an offer letter with language, "the compensation will be at a minimum $-----" so I got another offer letter from the new employer saying the salary will at minimum be $67K (Today's prevailing wage)........now the real salary will be 77K ....technically this is not wrong because the offer letter says minimum 67K....but if the USCIS looks at paystubs and W2 they will see that the rate is 77K and not 67K.....will this be considered as fraud as far as USCIS is considered???

4. Overall the salary goes up in our industry at about 5-7% a year.....Now the labor was done three years ago in 2005....at 7% annual increase.....can we not defend 67K as per industry norms.......or will USCIS look at the hard line 55K number as far as similar position is considered??

5. Just to avoid complications....I may also accept 67K as salary for a few months and then work out a deal to increase later.....any thoughts...

Your expert opinions will be a very much valued Inpu....please please respond with your thoughts......
Click to expand...

coolman,
I couldn,t get much out of what you wrote. But bottom line I dont see any complications even with a increase of 100% in salary with respect to what mentioned in Labor certification. If you search on this forum you will find serveral threads regarding the salary difference are mention here. The way I see it as follows:
1. Your salary should not be less than what it mentioned in Labor at the time of your I-485 is getting approved.
2. Your Job must be same n similar to what it mentioned in the labor.

I have not seen ppl getting denied or even questioned if they are making more even 100% more of what was mentioned in their labor.
Logically also it doesnot make sense that a person is going to make the same amount as mentioned in the labor specially after USCIS I-485 delays for multiple years and with all this inflation in economy .
My salary is almost doubled wht it was mentioned in labor. I have no idea what your lawyer is saying..
Thanks,
gckajadoo
 
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gckajadu.......thank you very much for your response.....I really appreciate it.......its heartening......

It was RS Khanna that told me that the salary to be compared against is the salary at the time of the labor certification.......

I am a little concerned about a big jump like 30-40%...I know in the past people have done that however the yates memo says that substantial difference is looked upon.......
 
Differences of 30-40% are common within almost every industry, without the jobs being very different.

$55K to $120K might be cause for concern, but not $55K to $77K.

Large salary differences are only a problem if the difference is so large that it makes it look like the new job is not "same or similar".
 
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AC21 Prevailing Wage

Does USCIS look at the prevailing wage for the year that your original labor was filed? or the prevailing wage of the year you accepted the new employement using AC21?? Considering your position and job duties remain identical.....

Labor was filed in 2005 but the new employment offer will be accepted in 2008 .....the prevailing wage for identical position has gone up by 18% in 3 years in the region....so I think anyone can easily defend saying when I accepted the new position the prevailing wage as per FLC data was 18% above the prevailing wage in the labor for exactly the same position...........

Becasue if you moved into a new geographical area....the burden on you is to prove that you are getting more than the current prevailing wage in that region.......by the same logic you should be able to defend updated prevailing wage in the same region....

Any thoughts?

Thank you community.....
 
You are fine. Stop worrying about it. Only the original sponsor has the obligation to pay at least the prevailing wage.
 
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Jacko....Thanks!

You are right....I just need to stop worrying and do the right thing for my future!

Thank you for your support:)
 
Same here

Coolman, while I am not here to give answers, I should say I am in the exact same position as you are (Your numbers are pretty close to mine as are your labor, 485 dates). I have been seeking answers to the same questions and what I am hearing (which is good news :)) is that I should not worry about salary raises as long as the jobs are near identical. Infact my worry is mostly on the fact that I have had raises in short duration like you had (but based on negotiations and not certifications) and I am hoping it does not raise a red flag for the reviewing authorities. As I had mentioned in my posts I have been doing the same job, same desk, same location but got all the raises because my client was stubborn on not losing me which gave me good leverage to bargain raises from my employing company. Hope we all have a happy ending with GC :D
 
eempi....I have taken advice from Rajiv Khanna as well as Murthy lawyers.....both of them assured me that we will be okay........just go for it.........I have already resigned yesterday and look forward to the new beginning......

Vinit
 
Just another thought...if you are concerned about the salary issue...get into a deal with your employer to give you 67 K + 40% bonus "potential".... on papers your salary would by 67 K....
 
No need to worry

..unless you get an interview letter. Only then will USCIS have a "chance" to meticulously diagonize the pay "differences" and calculate the percentages and all. In most cases, this does not happen. All they need for AC21 is a letter from the new employer mentioning the job duties and these need to be similar to the original labor.
If you don't have to go for an interview, there is lot less reason to worry. Just gotta pray that your PD becomes current soon and visa numbers are available !!!!!

Good Luck !!!
 
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