EVL issues - Please Help

[Sugee]

The following format of letter was given in another thread:
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Dear Sir or Madam:

This letter is to confirm that <ur name> is employed with us as a <ur title - same/similar to one in LC> (Code: <from LC>) on a full time, permanent basis since <start date - after 180 days of 485 RD>. <New Employer Name> is an XXYYZZ firm, providing AABBCC solutions and services. <couple of lines about their business/revenues>

In his capacity as a <ur title>, <ur name> receives an annual base salary of <ur salary - hopefully similar to offered wage in LC>. In addition, he is eligible for paid vacation, health and retirement benefits, and applicable monthly and/or periodic bonuses.

His duties include: <similar job description from LC>

His work location may range all over the US, depending upon our client locations. <New employer's> geographic areas include, but are not limited to AABBCC. (this para is optional)

Please feel free to contact us if your office requires any further information.

Sincerely,

XYZ
HR Manager
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In my case, I am working with GC sponsor but not in the exact LC position or salary. (I worked in that exact position with them before during the first 2 years of sponsorship) So, I am assuming that the above letter may not be applicable to me. Am I right ?

I have 3 options I think:

1. Have the letter say I am working in same position as mentioned in LC but at a different (actually lesser than LC) salary.

To this further options are:

a. Explain reason for lower salary as fall in prevailing wages and invoke AC21 for change in salary. (or)

b. Explain reason for lower salary as fall in prevailing wages. And leave it at that without invoking AC21. (or)

c. Not explain the salary difference at all. And not invoke AC21 either.

(or)

2. Have the letter say that the original position is an open offer to me at the LC wages, although I am currently working in a similar position at a different level and lower salary of my own volition and choice, and that I am expected to accept the offer of LC position after GC has been obtained.

Your help will be greatly appreciated.

Thanks.

 

[lohith]

USCIS expects 2 docs for Ac-21 separately.

1. EVL from Employer -limited to job details, salary and start dates , nature of job(perm/indefinite/continuing), Pure job descriptive EVL matching to LC only, no ac-21 stuff. one can mention greater detail like Business Unit Code/Department also.

Do not put unnecessary stuff which leads to arguable by USCIS like job location is a variable, working on temp projects, company does not have permanent base. make it precise/succint.


2.AC-21 eligibility/claim based on EVL - preferbly from lawyer who can use lot of Ac-21 jargon. If not from lawyer, then HR/employer would be fine.

It's been discussed lot of times that, Ac-21 employer is a Variable/PlaceHolder until invoked; means one can substitute ANY employer incidentally or circumustantially if your job with current employer(or future job offer) is in same/simialr profession of LC.

Again, LC salary comes into scene/radar only after 485 approval.

 

[Sugee]

Thanks, Lohith. As for start date, I worked for the company from 2001 to 2003 and then laid-off for a year, and rejoined 2004. Should the date say the 2001 date or the 2004 date ? Sorry to bother again and again.

Thanks.

 

[lohith]

Thanks, Lohith. As for start date, I worked for the company from 2001 to 2003 and then laid-off for a year, and rejoined 2004. Should the date say the 2001 date or the 2004 date ? Sorry to bother again and again.

Thanks.

You have to use start date(2004) of current/active employment.
Even by sending UNSOLICITED Ac-21 docs, most of the times, trigger explicit RFE for Ac-21 eligibility too.

 

[Sugee]

Thank you, Lohith.

Recd RFE today they want EVL, pay-stubs for last 2 months and IT reyturns and W2 for 2004. For the EVL, this is what it exactly says:

Submit an original letter on company letterhead from your current
employer stating your date of hire, duties, remuneration and prospect
for continued employment.

Please can you guide on what the letter should contain ?

1. Curr Job, permenant position, Curr Salary
(or)

2. Labor Cert Job, permenant position, Curr Salary
(or)

3. Curr Job, permenant position, Curr Salary , with open offer for Labor Cert Job at Labor Cert Salary expected to be accepted after GC
(or)

4. Labor Cert Job, permenant position, Curr Salary - specifically justifying Curr Salary per prevailing wages along with AC21 invokation
(or)

5. Labor Cert Job, permenant position, Curr Salary, with stated intention of paying Labor Cert Salary after GC

Thanks in advance for all the help to you and others

 

[Sugee]

Is AC-21 appropriate in my case

If the letter states the LC job title, but a lower salary for current employment, will it be necessary to invoke AC-21 ? Sheela Murthy says that salary reduction should be addressed by AC-21 in cases where employer is saying he will not pay the proferred wages after GC is granted.

http://www.murthy.com/news/ukchange.html

But what if employer maintains intent to pay after GC ? Will AC-21 need to still be used ?

Or, in a case like mine, seeing a lower pay, will USCIS automatically trigger an RFE to get a letter of intent to pay proferred wages separately from the company ? Therefore will I have to either 1. choose AC-21 or 2. Explicitly have a line in the EVL saying that proferred wages will be paid after Greencaed approval ?

Will AC-21 delay the approval process ? Of course I understand that AC-21 carries immense risk as it is of being approved.

Thanks.

 

[lohith]

If the letter states the LC job title, but a lower salary for current employment,
.. Sheela Murthy says that salary reduction should be addressed by AC-21 in cases where employer is saying he will not pay the proferred wages after GC is granted.

See, AC-21 employer is not/never be your GC sponsor. It's just change of job in same profession dictated by LC.

If you invoke AC-21, with same job duties/profession but in diffrent location,
And if wage diffrence is ~10-15k it's fine. If difference it too wide and employer is not willing pay and wanna notify USCIS, [USCIS does not bother after 485 approval, what you are making, one can just sit idle too ], the wage should be justified by current DOL wages for that location, otherwise USCIS may be suspicious that whole your LC/GC is not Bona fide, may trigger more RFEs.

Sheela murthy's article was outdated(2003) with the improved expertise/scrutiny of USCIS from 2004 onwards. I know, in early 2000s, USCIS just used to listen to lawyer's arguments, now USCIS become hig-tech(hands on with law), it can refute/challenge lawyer's arguments too if it's not convincing.

But what if employer maintains intent to pay after GC ? Will AC-21 need to still be used ?

It's not advisable to push AC-21 on face of USCIS to justify lowerwages without valid reason of location change, USCIS does not take BS of business/economic downturn. If your employer uses that argument, USCIS is glad to issue RFE/NOID on 140 to show A2P.

Just ask your employer to put your current salary(> poverty wages) and will be (intending) paid LC wages after PR approval.
Well, employer need not to pay LC wages immediately after 485 approval. Wages only counted in annual basis. so, he may pay all the diff in annual bonus/backwages/OT,....etc..

 

[pralay]

If the letter states the LC job title, but a lower salary for current employment, will it be necessary to invoke AC-21 ? Sheela Murthy says that salary reduction should be addressed by AC-21 in cases where employer is saying he will not pay the proferred wages after GC is granted.

http://www.murthy.com/news/ukchange.html

But what if employer maintains intent to pay after GC ? Will AC-21 need to still be used ?

Or, in a case like mine, seeing a lower pay, will USCIS automatically trigger an RFE to get a letter of intent to pay proferred wages separately from the company ? Therefore will I have to either 1. choose AC-21 or 2. Explicitly have a line in the EVL saying that proferred wages will be paid after Greencaed approval ?

Will AC-21 delay the approval process ? Of course I understand that AC-21 carries immense risk as it is of being approved.

Thanks.

Actually, AC-21 employer replaces original sponsorer, but AC-21 is not bound by the salary specified in LC (due to the fact that it's not their LC). They are going to pay what they can offer - with condition that the job is similar to LC position and salary is higher than prevailing wage. It's not a question of business downturn, but a fact that different companies have different scale of salary figures. It's perfectly acceptable to USCIS provided it's higher than prevailing wage.

Yes, AC21 can delay approval because new employer always requires scrutiny and scrutiny can take time.

 

[lohith]

Actually, AC-21 employer replaces original sponsorer, but AC-21 is not bound by the salary specified in LC (due to the fact that it's not their LC).

Do you quote any USCIS memo/law that AC-21 replaces orignal GC sponsor and bound to LC's job duties only? also conveniently un-obligated by wage requirements.


Ac-21 employer does not own LC or 140 in any way. If underlying petitions were proved fraud/approved in error, like LC and 140. Then, Ac-21 employer wont help you to fight for LC/140. (due to the fact that it's not their LC/140)

Ac-21 employer not bound/obligated to any requirement by LC/140 (due to the fact that it's not their LC/140) .

It's beneficiary's burden to show current (or future) job is similar to one in LC and future/current salary is in that range (10-20k more/less) for that local market.

Ac-21 employer is good for nothing other than just EVL to continue your 485 case wih current/future job offer.

 

[Sugee]

See, AC-21 employer is not/never be your GC sponsor. It's just change of job in same profession dictated by LC.

If you invoke AC-21, with same job duties/profession but in diffrent location,
And if wage diffrence is ~10-15k it's fine. If difference it too wide and employer is not willing pay and wanna notify USCIS, [USCIS does not bother after 485 approval, what you are making, one can just sit idle too ], the wage should be justified by current DOL wages for that location, otherwise USCIS may be suspicious that whole your LC/GC is not Bona fide, may trigger more RFEs.

Sheela murthy's article was outdated(2003) with the improved expertise/scrutiny of USCIS from 2004 onwards. I know, in early 2000s, USCIS just used to listen to lawyer's arguments, now USCIS become hig-tech(hands on with law), it can refute/challenge lawyer's arguments too if it's not convincing.

It's not advisable to push AC-21 on face of USCIS to justify lowerwages without valid reason of location change, USCIS does not take BS of business/economic downturn. If your employer uses that argument, USCIS is glad to issue RFE/NOID on 140 to show A2P.

Just ask your employer to put your current salary(> poverty wages) and will be (intending) paid LC wages after PR approval.
Well, employer need not to pay LC wages immediately after 485 approval. Wages only counted in annual basis. so, he may pay all the diff in annual bonus/backwages/OT,....etc..

Lohith,

Many thanks for your responses.

I dont know what level of wages was used in my LC. LC is stuck with old lawyer. I only have the job title and SOC code from I-140 application copy. Since I dont know what the prevailing wages were in 2001 when LC was filed I am unable to guess the wage level. My current wages falls between level 2 and 3 as of current prevailing wages, and proferred wages is at level 4. The difference between proferred and current wages is 25K.

I too am in complete agreement with you regarding unnecessarily pushing AC-21 in the adjudicator's face. It is an aggressive move, and I dont want to use it unless I have an absolutely air-tight case.

But you do want the employer to specifically say that they will pay proferred wages after GC ? This might be a problem for me.

As it is the wage I will be showing includes shift differentials, OT etc. Without these my salary falls between level 1 and 2 of current prevailing wages. I have to do some convincing for putting this itself. Also for putting my LC job title and duties. My job now is different (same IT but a different kind of job). So to make them say they will pay me wages that is 25K more than what I make will be tough, however much assurances I give that I will not hold the letter against them ever.

 

[dallasgang]

Ac21

Did you get a RFE? Is that the reason u are filing AC21?

I changed my job few months back using AC21. Basically as long as ur 140 approved and 485 pending >= 6 months, you can change jobs by using AC21 law. There is no formal form to fill up.

My attorneys advised me that unless you get a RFE, you don't have to submit any AC21 letter.

 

[pralay]

Ac-21 employer does not own LC or 140 in any way. If underlying petitions were proved fraud/approved in error, like LC and 140. Then, Ac-21 employer wont help you to fight for LC/140. (due to the fact that it's not their LC/140)

Who is contradicting about it? Replacing sponsorer does not mean Ac-21 employer "own" LC/140. But rather, I-140/LC becomes irrelevent by AC-21, provided the job is similar. And that is replacing sponsorer.

Ac-21 employer not bound/obligated to any requirement by LC/140 (due to the fact that it's not their LC/140) .

Employer is not bound, but beneficiary is. Beneficiary needs to find AC-21 employer with "similar job" position (as mentioned in LC). But there is no requirement for salary matching - like within 10-20K as your mentioned. It's always good to have similar salary too, because that helps to prove the job is similar - but there is no as such requirement in Ac-21.

Ac-21 employer is good for nothing other than just EVL to continue your 485 case wih current/future job offer.

That's what called replacing sponsorer, if you understand. Following your logic, even original sponsorer who obtained LC/I-140 can be "good for nothing" (if you want to be believe employers are just a tool to get GC).

 

[pralay]

Since I dont know what the prevailing wages were in 2001 when LC was filed I am unable to guess the wage level.

You don't need to know prevailing wage of 2001 when LC was approved. For AC-21, you need current prevailing wage for your new job.

My job now is different (same IT but a different kind of job). So to make them say they will pay me wages that is 25K more than what I make will be tough, however much assurances I give that I will not hold the letter against them ever.

What do you mean by "different kind". As long as it requires similar skills, it's OK. Job title does not matter as such. What matters is job description.
I have seen people getting approved (Ac-21 case) with significant salary difference (20k+).

 

[lohith]

I only have the job title and SOC code from I-140 application copy. Since I dont know what the prevailing wages were in 2001 when LC was filed I am unable to guess the wage level.

All you need to find current wages for the job duties related SOC Code. That's what even Adjudicators may do if they want to confirm if your job is same/similar. Again, Ac-21 emphasises on same /similar job duties/description/profession as a primary basis for AC-21. USCIS uses wage range as guideline in somecases to confirm your job in same/similar field.

Quote , page 9, first paragraph from ac21guide.pdf
"
To determine whether a new job is in the same or similar occupational classification as the original job for which the certification or approval was initially made, the adjudicating officer may consult the Department of Labor's Dictionary of Occupational Titles or its online O'NET classification system or similar publications. "

But you do want the employer to specifically say that they will pay proferred wages after GC ?

NO. AC-21 employer is not obligated to pay your LC wages now/after 485 approval too.
This affirmation/promise of paying current Jobcode or orig LC wages are not required to mention in Ac-21 letter. USCIS does not dig on current wages for 485 cases if it is well OVER POVERTY WAGES. Only mention current wages.

My job now is different (same IT but a different kind of job).

Don't take chances on this. USCIS digs on job duties/desc stuff which is sole basis to claim your eligibility.
On job duties/description/profession, you MUST be as much as close (>70% skills/duties matching to be safer side). you can think of substituting 'yourself on new job' on your LC.

 

[lohith]

That's what called replacing sponsorer, if you understand.

I do not agree with 'replacing' which has stronger meaning with holding/inheriting responsibility of prior petitions (LC/140) too.

Ac-21 employers maybe changed/superceded in cource of time or employment, there is no restrictions on number of ac-21 employers. But orig sponsorer always orinal/unique with his petitions.

Following your logic, even original sponsorer who obtained LC/I-140 can be "good for nothing" (if you want to be believe employers are just a tool to get GC).

No, my orig. sponsor did took lot of responsibilty to initiate my GC process, like LC and getting approval of 140 based on his finances. I do have respect for org sponsorer.

In short, orig sponsorer, is the only one and unique, filed all GC related petitions with DOL/USCIS and represented on my behalf with initial 'good' intentions by showing/providing basis for EmploymentBased PR.

 

[pralay]

Ac-21 employers maybe changed/superceded in cource of time or employment, there is no restrictions on number of ac-21 employers. But orig sponsorer always orinal/unique with his petitions.

Replacing not a strong word, "inheritence" is not mandatory for replacement. AC-21 not only replaces sponsorer, but it replaces procedure. And that's why Ac-21 employer's fitness is so important in Ac-21.
After introducing AC-21, original sposorer is unique only in the sense who only filed LC/I-140 (Ac-21 didn't). Otherwise, after more than 180 day of pending I-485, there is no different between original sponsorer and Ac-21 employer. Both can compete for same resource (beneficiary). That's why it is called "The American Competitiveness in the Twenty-first Century Act".

In short, orig sponsorer, is the only one and unique, filed all GC related petitions with DOL/USCIS and represented on my behalf with initial 'good' intentions by showing/providing basis for EmploymentBased PR.

Same thing applies for AC-21 employers too - who is giving EVL or job offer (or financial record if required). Doing more paperwork (DOL/USCIS) does not mean it should be respected and AC-21 employer should be considered "placeholder". Both of them have same purpose - helping a non-immigrant to get immigrant status due to their own requirement in their respective companies.

 

[Sugee]

All you need to find current wages for the job duties related SOC Code. That's what even Adjudicators may do if they want to confirm if your job is same/similar. Again, Ac-21 emphasises on same /similar job duties/description/profession as a primary basis for AC-21. USCIS uses wage range as guideline in somecases to confirm your job in same/similar field.

Lohith, I thought, for my case, working as I am for GC sponsor, you advised me not to go for AC-21.

Still, this is the info on my Job title and prevailing wages. The SOC code for my LC job was 15-1030. That code is not there anymore in the list. The nearest code is 15-1051. For 15-1051, the wages are 36K, 53K, 69K and 85K for levels 1,2,3 and 4 respectiveley. My proferred wages are 85K and I now make 60K.

How will my wages play out in this case, where I am with original sponsor, and am not invoking AC-21 ?

Don't take chances on this. USCIS digs on job duties/desc stuff which is sole basis to claim your eligibility.
On job duties/description/profession, you MUST be as much as close (>70% skills/duties matching to be safer side). you can think of substituting 'yourself on new job' on your LC.

This I will certainly try and get through, that is, making my titles, duties and description mirror my LC/I-140 applications.

But my question was on your suggestion that the letter also says that company will pay me the proferred wages in the future. If I dont have this line, how much will it affect my approval ?

Many, many thanks for patiently discussing my case.