Salary required for 140

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worldcitizen

Registered Users (C)
My Salary on W-2 this year and last year comes to less than 40K. I have applied for 140/485 in October.

Is there a minimum salary thats required to be shown on my W-2 for 140 ?
 
Salary required for 140

Originally posted by usnycus
Min. salary is based on approved LC. Check that.
Click to expand...

My Labor Certification petition says around 64K /year. But, I had gone to India for 2 months and in between employers for 1 month. My salary this year comes to 40K only.

Will it be a problem
 
its should be based either on ur LC or on ur H-1B if uare maintaining H-1B status.

Min. salary is based on approved LC. Check that. [/QUOTE]
 
Originally posted by pathikb
its should be based either on ur LC or on ur H-1B if uare maintaining H-1B status.

Min. salary is based on approved LC. Check that.
Click to expand...
[/QUOTE]

MY H-1B LCA says 62K and my Labor Certification says 64K. But I had made only around 40K because of 2 months vacation and 1 month bench.

Pls advise what precautions I can take
 
For GC, salary is always based on approved LC but company/employer does not have to pay that amount till your GC is approved. What I am trying to say is "One can get away with current low salary if attorney/employer can show that they will pay benefieciery the prevailing wage (on LC) once GC is approved".

You might get RFE for salary in case it's way too low compared to wages mentioned in approved LC. INS can and have issued RFE in past for employer INTENTION and ABILITY to pay prevailing wage.

Also check following link, item #9
http://www.usvisanews.com/wedquest120402.html

Regarding H1, employer is required by law to pay salary based on LCA (not LC). He might be doing fruad by not paying correct salary. Also not paying for vacation or benching is illegal.
 
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Originally posted by usnycus
For GC, salary is always based on approved LC but company/employer does not have to pay that amount till your GC is approved.

You might get RFE for salary in case it's way too low compared to wages mentioned in approved LC. INS can and have issued RFE in past for employer INTENTION and ABILITY to pay prevailing wage.

Also check following link, item #9
http://www.usvisanews.com/wedquest120402.html
Click to expand...

If its low by 15-20K, Will the 140 petition be rejected?
For the petition to be successful, what kind of response is typically given by lawyers?
 
Employer needs to justify in the response that they will be paying offered salary once GC is approved. Basically they need to show that they are CAPABLE and WILLING.

BTW, they should be paying you atleast what LCA (for H1) says.
 
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TO usnycus

Originally posted by usnycus
Employer needs to justify in the response that they will be paying offered salary once GC is approved. Basically they need to show that they are CAPABLE and WILLING.
Click to expand...
Thanks for ur response.
What are the ways in which my employer can show that they are CAPABLE and WILLING?
What are the typical ways that employers react to such RFE's?
Thanks
 
Attorney can help you/employer with words/contents. But following could be used as a guideline.

CAPABLE: Finanacial papers, tax returns, business contracts etc.

WILLING: Job offer letter from employer with offered salary/position. Also showing that other employees with the same position within the company are making what is offered in LC.
 
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To usnycus

Originally posted by usnycus
Attorney can help you/employer with words/contents. But following could be used as a guideline.

CAPABLE: Finanacial papers, tax returns, business contracts etc.

WILLING: Job offer letter from employer with offered salary/position.
Click to expand...

Thanks Again!
I think my employer might be able to do that. I have one last concern.

My current designation is Sr. Programmer Analyst and the future position for which Labor/GC has been filed is also Sr.Programmer Analyst.

Will INS raise a potential query saying why for the same positon(Sr Programmer Analyst) the company is paying 20 K less now? If they raise such a query , how can my company respond?

Thanks
 
I am not sure what to answer...:confused:

They must be already paying the amount at which LCA (H1) was approved. Your current salary is way too low than LCA.

Its illegal and immigration fraud not to pay employee the required wage.

As I said before "BENCHING BY EMPLOYER" is not allowed. You might get away with unpaid vacation if that's the standard within the company and they have records to prove that it's normal practice within the company.
 
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I-140 RFE ability to pay

Hi usnycus,
I am in a similar situation ...
EB2 RIR - Concurrent
ND : Nov 02
RFE : Nov 13 2003
The RFE is about companys ability to pay.

Co-incidentally my company is paying me 20k less too, however my company is a very small company and had suffered huge losses last year, but its re-covering pretty good. In this condition can u suggest me a good way to answer the RFE ...

thanks,
rhino.
 
How about asking your employer/attorney to count in all the benefit your company are paying for you? It should a big sum of money though.
 
Re: I-140 RFE ability to pay

Originally posted by rhinohere
Hi usnycus,
I am in a similar situation ...
EB2 RIR - Concurrent
ND : Nov 02
RFE : Nov 13 2003
The RFE is about companys ability to pay.

Co-incidentally my company is paying me 20k less too, however my company is a very small company and had suffered huge losses last year, but its re-covering pretty good. In this condition can u suggest me a good way to answer the RFE ...

thanks,
rhino.
Click to expand...

I am in a similar situation. How do u plan to respond to ur RFE? I expect an RFE anytime from INS?

Thanks
 
Originally posted by nohopeforever
How about asking your employer/attorney to count in all the benefit your company are paying for you? It should a big sum of money though.
Click to expand...

The only benefit I am getting is Health Insurance. Anyway, how can they add health insurance to my W-2?
 
I understand that employee can work for salary less than required in LCA as GC if for a future employment.

What is the minimum salary requirement if the employee did not work on a H-1 for that employer and is using EAD with pending I-1485 application? I believe there is nowhere mentioned what is the basis of minimum salary in this scenario. Looks like a gray area to me.... i.e. even if LC requires 100K, employee might be receiving a salary of 50K and there is no way to enforce minimum salary requirement

Have I got this one totally wrong?



Originally posted by usnycus
Employer needs to justify in the response that they will be paying offered salary once GC is approved. Basically they need to show that they are CAPABLE and WILLING.

BTW, they should be paying you atleast what LCA (for H1) says.
Click to expand...
 
140-RFE regarding Company's ability to pay

Though the company had loses last year, still a representative from your company convince INS saying that 'they had lose last year bcoz of the economy and Now the company is doing good and in a postion to post Profits by the end of this year'.

This is my suggestion. Im not expert.
 
140-RFE regarding Company's ability to pay

quote:
--------------------------------------------------------------------------------
Originally posted by usnycus
Employer needs to justify in the response that they will be paying offered salary once GC is approved. Basically they need to show that they are CAPABLE and WILLING.

BTW, they should be paying you atleast what LCA (for H1) says.
--------------------------------------------------------------------------------

However the RFE I received states .....
"Submit additional evidence to establish that the employer had the ability to pay the proffered wage or salary of $xx,000 as of the date of filing (of LC) and continuing to the present. "

Its the last phrase that is bothering me !!! any more inputs ... ?

rhino.
 
NeelBuddy

Your post makes a lot of sense and can be presented to INS.

Employer can provide following documentations to support his/her argument:

a) By showing any business deal/contract, which can bring revenue, they made within last 6 month.
b) Increase in pay rate for other employees within the firm
c) New hire(s)
d) Quarterly financial report.

vxmehra98

Sure one can do that but get ready for possible RFE.

Salary during AOS is a gray area. There is no law as a guidance to come up with proper solution. Usually difference of less then 5K is not an issue and even if INS decides for RFE based on that it is easily arguable.

Problem starts when the gap is more than 10K between prevailing wage mentioned on approved LC and current salary. By law, it's not required for any employer to pay the prevailing wage to the employee till they get GC approved, but it's very hard to convince INS that employee will be eventually paid the stated salary.

In cases like that INS usually issues RFE for employer WILLINGNESS and ABILITY.
 
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