How to deal with underpayment.

[Voin]

Hi there.
Here is my situation. My company is a small startup. We did some self-funded project couple years ago. My H-1B LCA at this period was for part-time 20hr/week.
Year went worse than expected and my resulting W2 was lower than allowed by LCA (disclaimer: I don't have original LCA, so I am using word "was"
only for description of possibility, actual situation might be different. I just want to know my options for the scenario, which I am describing here).
After that, we closed in-house project and I went for corp-to-corp consulting. My LCA was amended for full-time 40 hours per week and for new location. There was no problems with H-1B compliance ever since.
Now we are working on EBGC. 140 was approved and now we got notification about I-485 RFE. Actual mail is not here yet, so I have nothing better to do than contemplate worst-case scenario. Which will be status verification. W2 and I-94 for all H-1B years.

As I understand, if I receive paycheck with amount lower than specified in LCA, it puts me out of status. Since whole year was underpaid, it also nullify my 245(k) protection for AOS.
So I am trying to figure out if this situation can be salvaged somehow. I know about complain to DOL. It will clear me, but what will happen to my employer? If they retaliate and revoke my I-140, I will be in pretty my the same position I was before.
Now company is profitable (very profitable, in fact), so they can easily re-pay me the difference between LCA and W-2. I just don't see how it will help me with AOS troubles. USCIS require regular payments for all period of H-1B employment. Not stock options, not promissory notes...

Please advice.

 

[Jackolantern]

Don't worry until you know what the RFE is about. It may something simple like sending a better set of photographs, or something extra you need to do for the medical exam.

 

[Voin]

Yup. Here is the text:
RFE: "The documentation submitted with you application indicates that you do not reside in the same state or geographical location as the underlying Form I-140 or job location specified by your intended permanent employer. Please explain how you are able to maintain your permanent address in NM, while working for company in Colorado".

Weird. My PERM have job location "Colorado and Unanticipated job site in US". LCA was filed for new job site before I relocated for a contract assignment.
In any case, EBGC is for future employment, so if after the approval company require me to relocate to Colorado, I will do so. Why they assume I will maintain my NM address?
Plus, there is a little thing called "telecommute". But it is too complicated, I guess.

Anyway, underpayment question is still a thing which I am interested in. Is there any way to settle down this issue without complains to DOL?

PS: RFE notes from CRIS is a mental torture. It have to be outlawed by Geneva Convention or something.

 

[Jackolantern]

In any case, EBGC is for future employment, so if after the approval company require me to relocate to Colorado, I will do so. Why they assume I will maintain my NM address?

In support of the "ability to pay" evidence for the I-140, the employer may have included records showing that you are already employed in the position and have been paid accordingly. So although EB-GC's are really for future employment, in your case they may happen to know that the employment is also current. And if the employment can be performed by somebody outside CO, they will wonder why the recruitment for the labor certification was restricted to CO instead of inviting candidates from every state. So rather than talking about telecommuting, you need to convince them of one of the following:
(1) That you are only temporarily in NM and will permanently relocate to CO once your GC is approved, and the employer will do the same for your job upon knowing that the approved green card will enable you to permanently work in CO.
or
(2) New Mexico is very close to Colorado, and you travel back and forth frequently, performing the work in Colorado most of the time, staying in hotels or with family or some other accommodation in Colorado while maintaining your residence in NM.
or
(3) You live close to the NM/CO border and you commute daily into Colorado.

Anyway, underpayment question is still a thing which I am interested in. Is there any way to settle down this issue without complains to DOL?

That's a complicated problem and you should get a lawyer. If you want the money, you will have to sue the employer for the back pay. If you are just concerned about the underpayment affecting your I-485, don't worry about that until USCIS actually sends an RFE about it. Generally, if somebody is going to be penalized for underpayment, it is something the employER will be penalized for, not the employEE.