Some info
An excert from
www.Murthy.com on this matter...
Question : My I-485 has been pending over 180 days. I am in the same job as stated on the LC, but, due to the economy, my employer just cut my salary to a level that is below the salary on the LC. If my employer is unwilling to offer the higher salary, may I use AC21 to continue my GC application?
Answer : Since the INS has not yet issued any regulations on AC21, one cannot be sure if AC21 may be used even after a salary reduction. AC21 speaks in terms of "same or similar" position. It does not refer to salary issues. Originally, in June 2001 under the INS Interim Guidance Memo, the INS had stated that a person would be able to use AC21 as long as her/his salary was sufficient to overcome the "public charge" provisions. Later interpretations stated that the INS would look to the offered salary to determine whether the job was the "same or similar." Drastic swings in salary one way or the other may indicate that the job is different and dissimilar. More recently, the INS has stated in AILA Liaison meetings that the salary should be the same as that mentioned on the labor certification. This does not mesh with the previous guidance or the actual wording of the law. It is quite frustrating that there are no regulations more than 2 years after the law was passed. One could certainly argue AC21 eligibility in cases where the job duties are the same or similar, but the salary is slightly lower. Additionally, the INS has stated that the regulations will make an exception in cases of a reasonable good-faith interpretation of the law.
EDITORIAL COMMENTS : Salary differentials are an uncertain area in AC21 applicability. As stated above, the INS initially indicated that there were no salary restrictions, other than the public charge provisions. They reiterated this on a number of occasions and applied it in case adjudications. Later, they appear to have backtracked on this, although it is unclear whether that more narrow interpretation is being used at the various INS Service Centers and at the local INS District offices throughout the U.S.
AC21 was designed to allow for flexibility, both for the employer and the beneficiary. It was intended to allow for the movement of valuable employees to where they were needed, both within the sponsoring employer's locations and to other employers throughout the country. Given this, the salary should not have to be exactly the same. There are enormous variations in salary geographically. An individual may take a salary cut when moving from New York City to Iowa, even though the job is the same or has additional, supervisory responsibilities. The same is true when moving from a large employer to a smaller one. The same job at a major, national, company may pay more than at a small, start-up company. AC21 speaks in terms of "same or similar." A job that is "similar" but differs slightly in the responsibility level of duties or has lesser demands may also pay less. Some employers pay less money, but offer more benefits or leave time. Some employers pay less base salary, but offer the opportunity to earn bonuses of varying types. The possibilities are endless. We do not believe that AC21 was intended to require the same salary. We await INS regulations on this important issue to be certain for the future.
Posted Jan.10.2003
