I-485- 50% salary + bench questions

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CokeTin

Registered Users (C)
My employing company recently announced 10% salary reduction to match with the current industry trend. Additionally they announced that during bench period, there will be only 50% salary amount be paid to the employees. While many companies simply lay-off people when they come to bench, I would consider this a good advantage.

Now, my question is:

1. IF one happens to be on bench and he/she gets a query from BCIS to provide Proof of employment, obviously the pay stub would not match with the Labor Clearance document (or RIR document). Could this cause any problem? How would BCIS treat 50% salary + Bench situation?
a) still employed
b) employed but labor rate violation
c) unemployed

2. What is the length of time one can be without employment in EAD? Is a gap acceptable by BCIS? If so, what is the tolerable level?

3. IF a I-485 is unapproved for unemployment reasons, what is the future step that one can take? H1 reapply or go back home?

Thanks guys!

Regards,

CokeTin.
 
Your situation warrants immediate attention by an experianced immigration attorney. Please consult one, if you do not have one already and get advise before it is too late.
 
Thanks for your reply guys.

Yes it is certainly a screwy policy. Don't know how to deal with it.

Additionlly, can my employer pay less than what he/she agreed on H1 application?

Regards,

CokeTin.
 
While the impact on GC process due to getting reduced pay is debateable, it is illegal if you are on H1 status.
 
I-485 stage - 50% bench pay.

Armie,

Thanks for your reply.

If my employer pays me less than what is promised on H1 approval/Labor paper, who is at fault, me or my employer?

Regards,

CokeTin.
 
Re: I-485 stage - 50% bench pay.

Originally posted by CokeTin
Armie,

Thanks for your reply.

If my employer pays me less than what is promised on H1 approval/Labor paper, who is at fault, me or my employer?

Regards,

CokeTin.
Click to expand...

As long as you are on H-1, your employer is supposed to pay you the minimum wage prescribed in the LCA. They are technically violating the rules if they are not doing so. However, since the LCA may be a few years old, one can arguably make reasonable adjustments to the prescribed wage if the market conditions have changed since. If you are in the software field, the wage conditions appear to have demonstrably changed. A more recent LCA obtained by your company for a similar position in your area may indicate what the current prevailing minimum wage is.

There are no significant penalties for employers that do not comply or comply partially with the H-1 minimum wage rules. They will be able to get away with it under one pre-text or the other.

However, your situation with respect to obtaining permanent residency may not be the same. While technically an immigrant worker petition is for a future job, the INS will regard you as being out of status if you are not being paid the prescribed minimum wage (the same is true if you are not being paid at all). Status violations can cause your green card application to be rejected even if a future job, as certified in the permanent labor certification, is made available to you by your firm.

So, if your firm is willing to continue with your green card process, you are much better off to leave the country till they are able to place you.

Once you file your I-485, you have status till it is adjudicated. If you start working on your EAD subsequent to your I-485 filing and lose your job, you can technically stay without a job till you need to reply any future RFE that you may receive on employment. However, you still need to be able to demonstrate, for the full duration of the pendency of your I-485, that you have enough resources so as not to become a public charge.

If your I-485 is denied, you can technically open a motion to reconsider. The grounds on which you can hope for a favorbale verdict are rather narrow though. If the INS has inordinately held up adjudicatinig your application, and the proferred position, while continuing to be available for a reasonable period after your filing, became unavailable by the time an RFE was eventually issued, purely because of changes in market conditions and not your unsuitability for the position, and you continue to have other employment that can keep you from becoming a ward of the state, you can expect sympathetic consideration from the INS, failing which you can sue the agency in a federal court.

Good-luck.
 
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There are many companies which pays you if you are on project. After project they are paid bench(technically that is wrong). So ultimately those guys have less W2 as mentioned in H1B.

You are here for a long time . Just try and find out those companies/guys and ask them how to deal with that. Some say vacation is a good idea. USCIS is not that rude , thhey are not matcahing exact figures , so don't worry that much. You will find a way.

However for GC your company is responsible (thru their financial statments) that they are able to pay you salay mentioned in labor.)

Good Luck
 
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