AC21 : Ability of Substituted Employer to Pay Wages
AILA members advised ISD that at least one INS Service Center is making inquiries regarding the ability of the new employer to pay the wage stated on the labor certification in cases where the foreign national is attempting to gain approval of an Application for Adjustment of Status (I-485) based upon the American Competitiveness in the Twenty-First Century Act (AC21). AC21 allows for the approval of I-485s based upon employment other than that stated on the underlying labor certification, if the I-485 has been filed and remains unadjudicated for at least 180 days. In order to qualify, the position must be the same as, or similar to, the position described in the application for labor certification. AILA argued that inquiries about the new employer's ability to pay are improper and irrelevant to the AC21 considerations.
ISD responded that the Office of Programs at INS had advised that the new employer must pay the wage on the Labor Certification. Therefore, the new employer's ability to pay would be a relevant issue.
It appears that AC21 merely states that the new job must be the same as, or similar to, the position described on the labor certification. There is no mention of salary level. In fact, INS had addressed salary in a written memorandum issued June 19, 2001. Since INS has yet to issue regulations on the AC21 law, this Memo is the only written guidance available to date on
the meaning of AC21. The Memo specifically states that the new employer must provide salary information, in order for INS to determine whether the new job is same or similar and whether the person would make a sufficient amount of money to meet the "public charge" provisions of the law. With respect to the "same or similar" determination, if the salary offered in the new job is vastly different from the salary on the labor certification for no apparent reason, it may raise a question regarding whether the new job is really the "same or similar" job. If the salary falls below a level at which an individual can be self-sufficient, and may need governmental funds to subsist, the "public charge" provisions come into play. There is a vast
difference between the public charge requirements and the requirement to meet the salary on the Labor Certification. This issue requires further discussion with INS Headquarters in order to be consistent with their original position as outlined in the June 19, 2001 INS Interim Guidance Memo and to be consistent with the wording of the law.
INS repeatedly has stated the June 19, 2001 Memo's interpretation of the salary requirement. There was a statement by the Nebraska Service Center (NSC), that they reviewed salary levels to determine whether the new position is the same or similar. According to NSC officials, salary "is sometimes relevant, but is not a dispositive factor." This comment was mentioned in our May 24, 2002 article, "NSC Teleconference on I-485s: April 24, 2002," available on MurthyDotCom <http://www.murthy.com/UDnsc402.html>.
The ISD statement in the 09.19.2002 teleconference with AILA is the first official announcement of any divergence from the prior interpretation. Clarification is needed as to which version of the salary guidance will be reflected in the regulations. Having the force of law, the regulations set forth the rules, requirements, and procedures that must be followed thereafter.
AILA members advised ISD that at least one INS Service Center is making inquiries regarding the ability of the new employer to pay the wage stated on the labor certification in cases where the foreign national is attempting to gain approval of an Application for Adjustment of Status (I-485) based upon the American Competitiveness in the Twenty-First Century Act (AC21). AC21 allows for the approval of I-485s based upon employment other than that stated on the underlying labor certification, if the I-485 has been filed and remains unadjudicated for at least 180 days. In order to qualify, the position must be the same as, or similar to, the position described in the application for labor certification. AILA argued that inquiries about the new employer's ability to pay are improper and irrelevant to the AC21 considerations.
ISD responded that the Office of Programs at INS had advised that the new employer must pay the wage on the Labor Certification. Therefore, the new employer's ability to pay would be a relevant issue.
It appears that AC21 merely states that the new job must be the same as, or similar to, the position described on the labor certification. There is no mention of salary level. In fact, INS had addressed salary in a written memorandum issued June 19, 2001. Since INS has yet to issue regulations on the AC21 law, this Memo is the only written guidance available to date on
the meaning of AC21. The Memo specifically states that the new employer must provide salary information, in order for INS to determine whether the new job is same or similar and whether the person would make a sufficient amount of money to meet the "public charge" provisions of the law. With respect to the "same or similar" determination, if the salary offered in the new job is vastly different from the salary on the labor certification for no apparent reason, it may raise a question regarding whether the new job is really the "same or similar" job. If the salary falls below a level at which an individual can be self-sufficient, and may need governmental funds to subsist, the "public charge" provisions come into play. There is a vast
difference between the public charge requirements and the requirement to meet the salary on the Labor Certification. This issue requires further discussion with INS Headquarters in order to be consistent with their original position as outlined in the June 19, 2001 INS Interim Guidance Memo and to be consistent with the wording of the law.
INS repeatedly has stated the June 19, 2001 Memo's interpretation of the salary requirement. There was a statement by the Nebraska Service Center (NSC), that they reviewed salary levels to determine whether the new position is the same or similar. According to NSC officials, salary "is sometimes relevant, but is not a dispositive factor." This comment was mentioned in our May 24, 2002 article, "NSC Teleconference on I-485s: April 24, 2002," available on MurthyDotCom <http://www.murthy.com/UDnsc402.html>.
The ISD statement in the 09.19.2002 teleconference with AILA is the first official announcement of any divergence from the prior interpretation. Clarification is needed as to which version of the salary guidance will be reflected in the regulations. Having the force of law, the regulations set forth the rules, requirements, and procedures that must be followed thereafter.