Invoking AC21 with less Salary in the new Job

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sd73

Registered Users (C)
My I-140 got approved in Nov 04. Joined new employer on Jul 1, 05. Received an RFE for 485 asking for employment verification letter. Spoke with my attorney who suggested invoking AC21.

The problem - Salary shown in my labor was 80K and the salary in the new Job is 66K + 2.5 months salary as incentive bonus (which is not guaranteed, although everyone has been getting that for the past 5 years). The new job is with a very big company. Spoke with the HR manager there and she said they can mention 66K + incentive bonus based on the managers recommendation.

Could this spell trouble for me ?
 
AC21 merely requires that the job be "same or similar", and USCIS has taken the line that a lower salary does not prevent you from switching jobs. However, if the salary is a lot lower, then USCIS may question if the job is truly similar. If the duties and title are similar, then I wouldn't worry about a 10-14k difference.
 
Thank you all for your responses.

HR is willing to put the approx dollar amount for the bonuses but since the bonus is not guaranteed and is dependent upon manager's recommendation, they'll put "I am eligible for approx $11000 of bonus". I am not too sure if USCIS will consider this while comparing the 2 salaries.

Secondly, my lawyer said that there is a brand new USCIS Memo dated May 12, 2005 on AC-21 Portability (from Yates) which states "A substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is "same or similar." Therefore if wages are lower I could run into a problem.


I am really confused with all this. Getting mixed responses, some people say that salary is not a consideration whereas some say that it is !!

Could anyone please clarify and let me know if there have been some similar cases which have been approved.

Thanks a lot once.
 
sd73 said:
Secondly, my lawyer said that there is a brand new USCIS Memo dated May 12, 2005 on AC-21 Portability (from Yates) which states "A substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is "same or similar." Therefore if wages are lower I could run into a problem.
Click to expand...

The latest Yates memorandum doesn't say anything new. Salary is considered, but it's not the only consideration. It's logical for USCIS to question that if you are now making $150,000 and your LC only stated $40,000, then your new job isn't similar to the LC job.

I wouldn't be excessively worried. UCSIS' and BIA's track record on the AC21 "same or similar" provisions has been very broad and common sense. USCIS will also look at your job title and (especially) duties to determine "same or similar".

As an example, my LC title had me down as "Senior e-business Consultant" with a rate of $70k. I was approved after invoking AC21 to become a "Java Programmer/Analyst" with a rate of $90k (at an interview, no less) with no problems at all. As long as you're in the same line of work and the salary is in the same ballpark, you'll be fine.
 
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