Employer Delaying I-485

M

magdapa

New Member
I'm going through the GC process now, using EB2 path. Things were going just fine. My I-140 was approved back in January, but since we filed under a "Manager" position, we waited until my recent promotion, which happened a few weeks ago, to file I-485. However, now, my employer says that we'll have to postpone filing I-485. Why? Because I'm not making the prevailing wage.

Due to the economy, there was salary freeze, so no raises. This put me out of line with the prevailing wage. While, it could sound reasonable, there are a few facts to keep in mind:
- there are exceptions within the company for getting raises (based on the sector you serve/ the business line you work in), so the salary increase freeze in not 100% company-wide.
- the company is still hiring, since we're in need of people
- it clearly looks like the company is "able" to afford to pay my raise (it's not bankrupt)

Before I start fighting, I need to get a second opinion to see how "fair" it is for them to hold off filing I-485. I start questioning the ability of me being able to file next year or even in two years. It looks that I'm at their mercy to give me a raise. But, there's no guarantee when that could happen. They could easily tell me next year that the economy is still bad, or give me too low of a raise.

Is this legal? Ethical? Possible that they could just decide that they won't pay me the prevailing wage right now and just delay filing I-485? I would think not. I will be greatful for any advise and opinion.
 
The I-485 is your application, not theirs. File it yourself. Just get a copy of the I-140 receipt or approval notice, fill out the I-485, gather the other associated documents, and file it with your own money. And don't tell them you're filing it*. Just do it. I assume your priority date is current ... are you in EB2 ROW?

If you need the I-140 receipt or approval notice and don't have it yet, just tell them you're requesting a copy of it for your records.

Did really they give you a promotion and keep your pay the same? Or is it that after moving into the new position with higher pay, you're still making less than the prevailing wage?

Anyway, they don't have to pay the prevailing wage before you get the GC, they only have to pay it after, so they're giving you a bogus excuse. All they want to do is keep you trapped in the job.



*except if they eventually come to you saying they're ready to file it, you'll have to say you already filed it yourself.
 
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Thanks for your reply. I know that they don't have to pay me the prevailing wage until I actually get the GC. But can they say that "we're not going to file I-485 because we're not ready to pay you that much money just yet (i.e. as soon as it is approved)...so we're just gonna wait until you make the right amount of money and then we'll file it, so once you're approved, you'll all set." That just doesn't sound right, b/c I can wait forever if they decide to give low raises over the next couple of years...
 
Magdapa,

YOU CAN/SHOULD FILE YOUR OWN I-485. That's what Jack is saying.

Provided the employers have successfully filed a I-140. All you need from them is a copy of that I-140 and, I think, a CURRENT emplyment letter.
 
You can file your own i-485 with I-140 approval notice, along with current employer letter from your company ( same as i-140 company ).... just wait 180 days... and then you know what to do...
 
magdapa said:
But can they say that "we're not going to file I-485 because we're not ready to pay you that much money just yet
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They are not obligated to file I-485 for you. It's only good will. And if there is no good will - take a copy of I-140 approval and file I-485 yourself. The tricky thing is to get employment letter that says that your position is permanent.
 
The I-485 belongs to the individual, not the company. File it yourself. If you are in EB2 ROW, your GC probably will be approved before the company knows what happened. It is not uncommon for EB2 ROW and EB1 cases to be approved in less than 6 months.

I know people who have done it successfully without the employment letter. The main thing is getting the copy of the I-140 approval. Apparently USCIS will sometimes take a recent I-140 approval as evidence that the company intends to employ you. And anyway, you should be able to get a generic employment letter "to whom it may concern" from them without telling them exactly why.

How large (approx. %) is the difference between your current salary and the salary stated on your GC paperwork?
 
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GC is for future job.
If you haveCopy of I-140 filings receipt orCopy of I-140 approval notice file the I-485 without employer letter. USCIS may send RFE for employer letter and at that time you may be eligible for AC21 and if present employer does not give you job offer letter then you can join other employer and can send other employer letter to invoke AC21. with your I-485 file EAD and AP.
 
Yes, he can file a I 485 by his own. But key factor is still he need "Employer Verification" letter. This letter should be clearly indicate that They have intend to hire alien on approval of GC with Proffered LC wages. If Employer has clearly indicated that they are not ready to file his I 485 at this point, how come he will get letter?

RunninSloth said:
Magdapa,

YOU CAN/SHOULD FILE YOUR OWN I-485. That's what Jack is saying.

Provided the employers have successfully filed a I-140. All you need from them is a copy of that I-140 and, I think, a CURRENT emplyment letter.
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I have different opinion here ginnu.

Before using AC21 (Time between file I 485 to 180 days), one should have clear intention to work with LC sponsored Employer and Employer should have clear intention to hire LC beneficiary employee. If LC sponsored Employer havn't provided "Employment Verification" letter, it easily prove that intention of either side/or both sides was missing. In that case USCIS can deny I 485. better to have advise of good attorney.

ginnu said:
GC is for future job.
If you haveCopy of I-140 filings receipt orCopy of I-140 approval notice file the I-485 without employer letter. USCIS may send RFE for employer letter and at that time you may be eligible for AC21 and if present employer does not give you job offer letter then you can join other employer and can send other employer letter to invoke AC21. with your I-485 file EAD and AP.
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khodalmd said:
Yes, he can file a I 485 by his own. But key factor is still he need "Employer Verification" letter. This letter should be clearly indicate that They have intend to hire alien on approval of GC with Proffered LC wages.
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However, the I-140, especially an approved I-140, is considered prima facie evidence of the intent to hire the person, and people have gotten their I-485's approved without the employment letter, by including a copy of the I-140 approval.
If Employer has clearly indicated that they are not ready to file his I 485 at this point, how come he will get letter?
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It should be possible to get at least a generic letter, as if applying for a loan or apartment lease.

Magdapa should go ahead with the I-485 without the letter. If USCIS needs the letter they'll send an RFE. Or if they deny it outright without an RFE first, Magdapa doesn't lose anything other than the time and money spent; the I-485 can be filed again when the letter is obtained, or a Motion to Reopen can be requested.
If LC sponsored Employer havn't provided "Employment Verification" letter, it easily prove that intention of either side/or both sides was missing. In that case USCIS can deny I 485.
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Yes, USCIS can deny it on the basis of lacking that letter, but it doesn't mean they will.
 
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I understand what you mean for first two points. But last point is little different.
Per law AC21
Alien can change to same or similar job using AC21, if I140 is approved and I 485 is pending for more than 180 days. Even if Original Employer withdraw I 140 after 180 days of I 485, this application can be approved without issue.

Now Hypothetical case:

Alien file I 485 without Employment letter of I140 sponsoring letter. I 485 pass the 180 days. Alien used AC21 for same/similar job with another Employer. Original Employer got mad and withdraw I 140 and told USCIS that after I 140 approval situation of business changed and then he never intended to hire alien with proffered LC wages and this is the reason he never give Employment letter to alien for filing I 485.
In this case certainly alien I 485 get denied, even if he used AC21 with passed 180 days of I 485.





Quote:
If LC sponsored Employer havn't provided "Employment Verification" letter, it easily prove that intention of either side/or both sides was missing. In that case USCIS can deny I 485.
Yes, USCIS can deny it on the basis of lacking that letter, but it doesn't mean they will.
 
khodalmd said:
Alien file I 485 without Employment letter of I140 sponsoring letter. I 485 pass the 180 days. Alien used AC21 for same/similar job with another Employer. Original Employer got mad and withdraw I 140 and told USCIS that after I 140 approval situation of business changed and then he never intended to hire alien with proffered LC wages and this is the reason he never give Employment letter to alien for filing I 485.
In this case certainly alien I 485 get denied, even if he used AC21 with passed 180 days of I 485.
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Maybe, but if he is in EB2 ROW or EB1 I would expect the I-485 to be approved before, or shortly after, the 180 days have passed so that AC21 would be unnecessary. At that point the employer can't do anything about his green card. If the employer asks USCIS to revoke his green card because they don't plan to pay him the stated amount, USCIS will ignore them -- the employer would look like an idiot asking them to revoke his card because they (the employer) don't intend to live up to their end of the bargain after the fact. If they changed their mind about wanting to hire somebody, the means of asserting that is to revoke the I-140 before the green card is approved.

No matter what, there is an element of risk. At least filing the I-485 now gives a decent chance at success, rather than waiting and waiting and begging for the employer to go ahead with it.
 
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khodalmd said:
I understand what you mean for first two points. But last point is little different.
Per law AC21
Alien can change to same or similar job using AC21, if I140 is approved and I 485 is pending for more than 180 days. Even if Original Employer withdraw I 140 after 180 days of I 485, this application can be approved without issue.

Now Hypothetical case:

Alien file I 485 without Employment letter of I140 sponsoring letter. I 485 pass the 180 days. Alien used AC21 for same/similar job with another Employer.
Original Employer got mad and withdraw I 140 and told USCIS that after I 140 approval situation of business changed and then he never intended to hire alien with proffered LC wages and this is the reason he never give Employment letter to alien for filing I 485.
--------------------Employer can withdraw the I-140 any time but if I-485 is pending morethan 180 days the person is eligible for AC21, Alien gets new job and sends new employer letter and I-485 is approved based on New Employer job offer letter. Do you know that many got I-140 approved and filed I-485 and company got closed? what they did ? they found new employer and invoked AC21 and got approved( I know 2-3 cases)


In this case certainly alien I 485 get denied, even if he used AC21 with passed 180 days of I 485.





Not Hypothetical case:
Let me inform you that XYZ was in similar situation. I-140 approved, employer not ready to file I-485. XYZ had only I-140 filing receipt. He filed I-485 with copy of I-140 filing receipt and No Employer job offer letter was sent with I-485 (XYZ used the services of good lawyer of NYC). XYZ also filed EAD and AP. XYZ got I-485 filing receipt and in few days got EAD and AP approved. XYZ left the employer and joined other employer on H1.His I-485 was pending about 1 year and later USCIS sent RFE for employer letter and he sent new employer letter and invoked AC21 and got approved. Original employer still doesn’t know that XYZ got GC based on his I-140.
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